Milwaukee Police Association v. City of Milwaukee

2018 WI 86
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2375
COMPLETE TITLE: Milwaukee Police Association and Michael
Crivello,
Plaintiffs-Appellants-Petitioners,
Milwaukee Professional Fire Fighters
Association, Local 215 and David R. Seager, Jr.,
Intervenors-Plaintiffs-Co-Appellants-
Petitioners,
v.
City of Milwaukee,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 326, 897 N.W.2d 67
(2017 – Unpublished)
OPINION FILED: July 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 14, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Timothy G. Dugan
JUSTICES:
CONCURRED: R.G. BRADLEY, J., concurs, joined by GABLEMAN,
J. (opinion filed).
DISSENTED: ABRAHAMSON, J., dissents, joined by A.W. BRADLEY
J. (opinion filed).
KELLY, J., dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs filed by Jonathan Cermele and Cermele & Matthews, S.C.,
Milwaukee. There was an oral argument by Jonathan Cermele.
For the intervenors-plaintiffs-co-appellants-petitioners,
there were briefs filed by Christopher J. MacGillis, Sean E.
Lees, and MacGillis Wiemer, LLC, Wauwatosa. There was an oral
argument by Christopher J. MacGillis.
For the defendant-respondent, there was a brief filed by
Stuart S. Mukamal, assistant city attorney; Grant F. Langley,
city attorney; and Miriam R. Horwitz, deputy city attorney.
There was an oral argument by Stuart S. Mukamal.
2
2018 WI 86
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2375
(L.C. No. 2014CV8688)
STATE OF WISCONSIN : IN SUPREME COURT
Milwaukee Police Association and Michael
Crivello,
Plaintiffs-Appellants-Petitioners,
Milwaukee Professional Fire Fighters
Association, Local 215 and David R. Seager, FILED
Jr.,
JUL 6, 2018
Intervenors-Plaintiffs-Co-Appellants-
Petitioners, Sheila T. Reiff
Clerk of Supreme Court
v.
City of Milwaukee,
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. When the Employee
Retirement System (ERS) was created for the City of Milwaukee
(the City) in 1937, the State granted each employee-member of
the ERS the right to vote for the election of three employees to
serve on the ERS Annuity and Pension Board (the Board) comprised
of seven members. In 1947, the State granted all first class
No. 2015AP2375
cities the opportunity to manage the ERS pursuant to the
exercise of home rule powers. However, the State also protected
individual rights of those persons who were members of an ERS
because the State precluded amendment or alteration that
modified "the annuities, benefits or other rights of any persons
who are members of the system prior to the effective date of
such amendment." § 31(1), ch. 441, Laws of 1947.
¶2 In 1967, the City exercised its home rule over the
ERS, consistent with the State's protections of individual
member rights. However, in 2013, the City amended its charter
ordinance and reduced the voting rights of employees. Each
employee-member was permitted to vote for only one employee to
serve on the Board, rather than three, and employees could no
longer vote for the employees of their choice. The City also
gave the mayor three appointments, thereby increasing the size
of the Board to eleven members.
¶3 Milwaukee Police Association (MPA) members and
Milwaukee Professional Fire Fighters Association (MPFFA) members
challenged the 2013 amendment, saying that it altered the "other
rights" of employee-members of the ERS who were members prior to
the amendment in violation of State law.
¶4 Upon review, we conclude that the City's 2013
amendment to its charter ordinance that reduced each individual
employee-member's right to vote for three employees of his or
her choice to serve on the Board, while diluting employees'
voice on the Board, modified "other rights" and therefore, is
contrary to State law. Accordingly, for the reasons stated more
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No. 2015AP2375
fully below, we reverse the decision of the court of appeals and
restore the right of employee-members to vote for three
employees of their choice to serve as employee-members of the
Board. We also return the Board's size to its size prior to
2013.
I. BACKGROUND
¶5 In 1937, the State established the ERS and its
administrative powers and responsibilities for cities of the
first class. Ch. 396, Laws of 1937. The "administration and
responsibility for the proper operation of the retirement
system" were "vested" in the Board. Id., § 7(1). The 1937 Law
established classifications for Board positions and the right of
employees to elect three employees to serve as Board members.
Relevant to our discussion of MPA's and MPFFA's challenge, the
Law provided:
(2) MEMBERSHIP. The membership of the board
shall consist of the following:
(a) Three members to be appointed by the chairman
of the common council or other governing body (subject
to the confirmation by such common council or other
governing body), for a term of three years,
(b) The city comptroller ex-officio,
(c) Three employe[e] members who shall be members
of the retirement system and who shall be elected by
the members of the retirement system for a term of
three years according to such rules and regulations as
the board shall adopt to govern such election. The
initial terms of the first three members so elected
shall expire at the end of one, two and three years,
respectively. Following the completion of the initial
terms, the terms of the office of such members shall
be three years.
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No. 2015AP2375
§ 7(2), ch. 396, Laws of 1937.
¶6 If a vacancy occurred "in the office of a board
member," the 1937 Law provided that "the vacancy shall be filled
for the unexpired term in the same manner as the office was
previously filled." Id., § 7(3). Each Board member had one
vote. "Four votes shall be necessary for a decision by the
members of the board at any meeting of the board." Id., § 7(5).
¶7 The 1937 Law also provided that it is the Board's
responsibility to "establish rules and regulations for the
administration of the funds created by this act and for the
transaction of its business." Id., § 7(6). The Board members
were "trustees of the several funds of the system," and given
the "full power [and] sole discretion to invest and re-invest."
Id., § 9(1).
¶8 In 1947, in order to give all first class cities such
as Milwaukee "the largest measure of self-government with
respect to pension annuity and retirement systems," the State
amended its 1937 ERS enactment and granted the City the
opportunity to assume responsibility for the ERS, whereby the
City could "amend or alter the provisions" of the ERS "in the
manner prescribed by section 66.01 of the statutes." § 31(1),
ch. 441, Laws of 1947. However, in so doing, the legislation
did not give the City carte blanche to amend the ERS as it
pleased. Rather, the law explicitly limited the City's power,
providing that "no such amendment or alteration [to the ERS]
shall modify the annuities, benefits or other rights of any
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No. 2015AP2375
persons who are members of the system prior to the effective
date of such amendment or alteration." Id.
¶9 In 1967, the City, by charter ordinance, exercised
home rule over the ERS. The City adopted the language from
§ 31(1) of the 1947 Law nearly verbatim. The City's home rule
as it appears in its charter ordinance states:
For the purpose of giving to cities of the first class
the largest measure of self-government with respect to
pension, annuity and retirement systems compatible
with the constitution and general law, it is hereby
declared to be the legislative policy that all future
amendments and alterations to this act are matters of
local affair and government and shall not be construed
as an enactment of statewide concern. Cities of the
first class are hereby empowered to amend or alter the
provisions of this act in the manner prescribed by
s. 66.0101, Wis. Stats., provided that no such
amendment or alteration shall modify the annuities,
benefits or other rights of any persons who are
members of the system prior to the effective date of
such amendment or alteration.
Milw., Wis., Charter Ord. § 36-14 (emphasis added). Following
the City exercising its home rule power, the voting rights of
ERS members who were employees remained the same as that
provided by statute when the ERS was created. That is,
employees continued to have the right to vote for three
employees to serve as members to the Board. Milw., Wis.,
Charter Ord. § 36-18-2.
¶10 In 1972, the City amended its charter ordinance,
changing the composition of the Board. The amendment added a
retired employee as a member of the Board, elected by other
retired employees. Milw., Wis., Charter Ord. § 36-15-2(d).
This change did not limit the voting rights of employee-members,
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No. 2015AP2375
who continued to have the right to elect three employees of
their choice to serve as members of the Board. Id.
¶11 In 2013, the City again amended its charter ordinance.
The 2013 amendment significantly reduced the voting rights of
employees to select employees as members of the Board. MPA
members were limited to electing only one Board member, and that
person had to be a police officer. Milw., Wis., Charter Ord.
§ 36-15-(2)(c). MPFFA employees voting rights were similarly
reduced so that they too could elect only one Board member and
they could select only a firefighter. Id. And finally, the
City limited the voting rights of all other employee-members of
the ERS such that they could vote for only one Board member who
could be neither a police officer nor a firefighter. Id.
¶12 The 2013 amendment also increased the size of the
Board to eleven members. While the chairman of the common
council continued to appoint three Board members, pursuant to
the amendment, the mayor was given power to appoint three
additional Board members. Id., § 36-15-(2)(a-3).
¶13 MPA challenged the 2013 changes to the ERS in circuit
court, seeking declaratory judgment and a permanent injunction.
In so doing, MPA alleged that the 2013 amendment infringed on
the rights of police officers to vote for three employees to
serve as ERS Board members, and to participate in a Board of
similar size to that provided in the State's 1947 delegation to
the City. The circuit court allowed MPFFA, who sought the same
relief, to intervene.
6
No. 2015AP2375
¶14 The City and MPA filed cross-motions for summary
judgment, and the circuit court ruled in favor of the City,
concluding that the modifications of the ERS were lawful.1 In
its oral ruling, the circuit court concluded that "under the
circumstances[,] the other rights provisions of the statute and
the charter do not include a specific right to the makeup of the
board," and "the city's modification of the makeup of the board
does not affect any of the rights of the members." The circuit
court did not address the curtailment of individual employee's
right to vote to elect three employees to serve as Board
members.
¶15 On appeal, the court of appeals affirmed the circuit
court, relying in large part on Stoker v. Milwaukee Cty., 2014
WI 130, 359 Wis. 2d 347, 857 N.W.2d 102. The court of appeals
concluded that there were no vested rights to the size,
composition, and manner of election of the Board and that "the
City is entitled to amend, on a prospective basis" these matters
"because the members of the retirement system do not have any
rights in those matters." Milwaukee Police Ass'n,
No. 2015AP2375, unpublished slip op., ¶21 (Wis. Ct. App. Mar.
23, 2017). As with the circuit court, the court of appeals
ignored individual employee's right to vote to elect three
employees to serve as Board members. The court of appeals did
so by shifting the focus of its discussion to the Board's "size,
1
The Honorable Timothy G. Dugan of Milwaukee County
presided.
7
No. 2015AP2375
composition, and manner of elections," rather than considering
individual employee's statutory right to vote or whether they
had a meaningful voice in Board decisions. Id., ¶17.
¶16 MPA and MPFAA sought review of the court of appeals'
decision; we granted review. For the reasons set forth below,
we reverse the decision of the court of appeals.
II. DISCUSSION
A. Standard of Review
¶17 This case is before us on summary judgment granted to
the City. We review summary judgments independently. Grygiel
v. Monches Fish & Game Club, Inc., 2010 WI 93, ¶12, 328 Wis. 2d
436, 787 N.W.2d 6. Here, summary judgment turns on statutory
interpretation that we also address independently, while
benefitting from the discussions of the court of appeals and the
circuit court. Voces De La Frontera v. Clarke, 2017 WI 16, ¶12,
373 Wis. 2d 348, 891 N.W.2d 803.
¶18 Furthermore, we independently decide, as a matter of
law, whether a matter is primarily of statewide concern, Black
v. City of Milwaukee, 2016 WI 47, ¶30, 369 Wis. 2d 272, 882
N.W.2d 333.
B. Statute/Ordinance Interaction
¶19 Municipal corporations have only those powers that
were specifically conferred on them and those that are
necessarily implied by the powers conferred. Van Gilder v. City
of Madison, 222 Wis. 58, 73, 268 N.W. 108 (1936); Butler v. City
of Milwaukee, 15 Wis. 546 (*493), 550 (*497) (1862).
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No. 2015AP2375
¶20 The City, through statutory delegation from the State
and its enactment of charter ordinance pursuant to Wis. Stat.
§ 66.0101 (2015-16),2 has home rule powers permitted by Article
XI, § 3(1) of the Wisconsin Constitution, some of which bear on
the ERS.3 Black, 369 Wis. 2d 272, ¶4.
¶21 In the case before us, the State permitted the City to
exercise home rule over many ERS provisions. Ch. 441, Laws of
1947. The City began to exercise those powers in 1967.
However, notwithstanding the City's home rule powers, certain
aspects of the ERS continued to be matters of statewide concern.
See e.g., Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶95, 358
Wis. 2d 1, 851 N.W.2d 337 (concluding that Wis. Stat. § 62.623
(2011–12), which prohibited the City from paying employees'
shares of ERS contributions, was a matter of statewide concern
and therefore, § 62.623 superseded the City's home rule powers).
Furthermore, the delegation of authority to the City in regard
to the ERS was specifically limited by the legislature's 1947
enactment. The City was given no power to "modify the
annuities, benefits or other rights of persons who are members
of the system."
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
3
Cities and villages organized pursuant to state law may
determine their local affairs and government, subject to the
Wisconsin Constitution and to such enactments of the legislature
of statewide concern as with uniformity shall affect every city
or village. The method of such determination shall be
prescribed by the legislature. Wis. Const. art. XI, § 3(1).
9
No. 2015AP2375
1. "Other rights"
¶22 The City's management of the ERS arises through
legislative delegation as a "matter[] of local affair[s] and
government." § 31(1), ch. 441, Laws of 1947. Through this
delegation, the City was given the power to "amend or alter" the
ERS to best suit the needs of the system. However, an important
limitation was placed on the City; it was precluded from
modifying "the annuities, benefits or other rights of any
persons who are members of the system . . . ." Id. (emphasis
added).
¶23 At oral argument all parties seemed to agree that
neither the employees' right to vote for three employees to
serve as members of the Board nor the size of the Board comes
within "annuities" or "benefits." The City did not contest that
employees are "persons who are members of the system."
¶24 Where the disagreement lies is with the meaning of
"other rights." That disagreement is two-fold: (a) whether
each employee-member has the right to vote to elect three
employees to serve as Board members, and (b) whether the Board
must remain of a similar size to that originally established
under the 1947 Law, wherein the State specifically limited the
City's management powers over the ERS. We address each
contention in turn.
a. Employee voting rights
¶25 The ERS was created by the legislature to provide
benefits for City employees at their retirement and to pay
benefits to the widows and children of deceased employees.
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No. 2015AP2375
Ch. 396, Laws of 1937. The Board was charged with the
responsibility to establish rules and regulations for conducting
Board business. Id., § 7(6). Board members were "trustees" of
the funds they managed, in which the Board had "full power in
its sole discretion to invest and re-invest." Id., § 9(1).
¶26 In 1937, each employee who was an ERS member was
granted voting rights sufficient to elect three employees of his
or her choice to become Board members. Id., § 7(2)(c). Those
employee voting rights assured that the interests of employees,
for whom the ERS was created, would have a meaningful voice in
Board decisions. Stated more fully, employee-elected Board
members were positioned to have oversight of the ERS so that its
funds would not be wasted and employees left without income
after years of work.
¶27 In 1947, when the State granted the City the
opportunity to manage the ERS through enactment of a home rule
charter ordinance, the State limited the City's ability to amend
or alter the ERS. The State specifically protected employees by
providing that the City could not "modify the annuities,
benefits or other rights of any persons who are members of the
system prior to the effective date of such amendment or
alteration." § 31(1), ch. 441, Laws of 1947 (emphasis added).
¶28 "Other rights" is not a legislatively defined term.
Accordingly, we interpret "other rights" to give meaning to the
legislative mandate by which the State limited the City's power
to amend or alter the ERS. State ex rel Kalal v. Circuit Court
for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
11
No. 2015AP2375
¶29 The purpose of a statute informs our interpretation of
statutory terms. McNeil v. Hansen, 2007 WI 56, ¶16, 300 Wis. 2d
358, 731 N.W.2d 273 (citing Klein v. Bd. of Regents of Univ.
Wis. Sys., 2003 WI App 118, ¶13, 265 Wis. 2d 543, 666 N.W.2d 67
(concluding that statutory interpretation that contravenes the
purpose of a statute is disfavored)). If a statute is capable
of a reasonable construction that carries out the manifest
purpose of the enactment, that construction should be given.
Westmas v. Creekside Tree Serv., Inc., 2018 WI 12, ¶19, 379
Wis. 2d 471, 907 N.W.2d 68. Statutory terms are interpreted in
the context in which they occur, not in isolation. State ex rel
Kalal, 271 Wis. 2d 633, ¶46. Ejusdem generis4 is a canon of
statutory construction that is sometimes employed to arrive at
the meaning of a term from the context in which the term
appears. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, ¶44,
319 Wis. 2d 439, 768 N.W.2d 700.
¶30 That annuities and benefits are rights of employees,
is not contested by the City. Furthermore, a plain reading of
the statute where annuities and benefits precede "other rights"
in the same sentence implies that "other rights" are of the same
type, i.e., ERS rights belonging to employees, Auto-Owners Ins.
4
Ejusdem generis is "A canon of construction holding that
when a general word or phrase follows a list of specifics, the
general word or phrase will be interpreted to include only items
of the same class as those listed." Ejusdem Generis, Black's
Law Dictionary 631 (10th ed. 2014). It literally means "of the
same kind." Auto-Owners Ins. Co. v. City of Appleton, 2017 WI
App 62, ¶17, 378 Wis. 2d 155, 902 N.W.2d 532.
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No. 2015AP2375
Co. v. City of Appleton, 2017 WI App 62, ¶17, 378 Wis. 2d 155,
902 N.W.2d 532, as contrasted with ERS rights belonging to the
City.
¶31 "Annuity" is a defined term that focuses on financial
payments for the welfare of ERS members and their families.
§ 1(6), ch. 396, Laws of 1937. However, although ch. 441, Laws
of 1947 did not define "other rights," the 1947 legislation did
explain that the "purpose of safeguarding the stability of
pension systems" was an important concern. § 31(2), ch. 441,
Laws of 1947. Safeguarding ERS stability is promoted by
employee-participation in the Board because it is employees,
current and past, for whom stability of the ERS is critical.
Preamble to ch. 396, Laws of 1937.
¶32 With that clearly stated purpose in mind, the phrase,
"other rights" easily encompasses employee voting rights because
employee members of the Board are in a unique position to
oversee the Board's use of funds and thereby safeguard the
financial stability of the ERS. Employees have the most to gain
from a financially stable ERS because the ERS directly impacts
their financial security upon retirement. In addition, it is
employees who will suffer most if ERS funds are lent to a cause
that returns a worthless promissory note in exchange for the
funds that the Board manages, as has occurred in other states.5
5
See Illinois Pension Problem: Coming to a State Near You,
USA Today, July 12, 2017; Rachel Greszler, How Big Is Your
State's Share of $6 Trillion in Unfunded Pension Liabilities?,
The Daily Signal, Dec. 20, 2017.
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No. 2015AP2375
¶33 And finally, the term, "other rights," occurs in a
series of financially related terms, e.g., annuities and
benefits that affect employees. It is reasonable to conclude
that § 31(1) of the 1947 enactment meant the phrase "or other
rights" to include employee ERS rights bearing on financial
matters in addition to annuities and benefits. This context
assists in interpreting the meaning of "other rights."
Milwaukee Journal Sentinel, 319 Wis. 2d 439, ¶44.
¶34 We conclude that the term, "other rights," includes
the right of each individual employee-member of the ERS to vote
for three employees of his or her choice to become members of
the Board and thereby oversee the continued financial stability
of the ERS. Stated otherwise, it was these other financially-
related rights of individual employee-members that the State
required the City not amend or alter. As we have explained
above, the right of each employee to vote to elect three
employee members to serve on the ERS Board promotes financial
stability for the ERS.
b. Board size
¶35 When the Board was established in 1937, it had seven
members, three of whom were current City employees, three of
whom were political appointees. § 7(2), ch. 396, Laws of 1937.
Each Board member had one vote, and a Board decision required
four votes. Id., § 7(5). The Board size remained the same in
1947 when the State granted the City the opportunity to assume
responsibility for the ERS and in 1967 when the City enacted its
charter ordinance, availing itself of that opportunity.
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No. 2015AP2375
¶36 In 1972, the City amended its charter ordinance to
increase the Board's size to eight. Milw., Wis., Charter Ord.
§ 36-15-2(d). A Board position for a retired employee, who was
elected by retired employees, was added. Id. This decision did
not dilute the employees' opportunity to oversee financial
decisions of the Board. Financial stability of the Board was
paramount for retired employees too.
¶37 In 2013, the City gave the mayor the power to appoint
three Board members, thereby increasing the Board size to
eleven. Milw., Wis., Charter Ord. § 36-15-2(a-3). Thereafter,
six of the eleven Board members were political appointees. This
increase in board size with political appointees diluted the
employees' ability to have the Board address concerns they may
have about ERS's financial stability.
¶38 In the matter before us, the Board was given the
administrative responsibility for the operation of the ERS.
§ 7(6), ch. 396, Laws of 1937. For example, the Board was given
the responsibility to "establish rules and regulations for the
administration of the funds." Id. Board members were
denominated, "trustees," of the assets under their care. Id.,
9(1). Although this change in the size of the Board did not
affect the Board's purpose or its obligations, it did affect the
employees' voice in regard to Board decisions. With three
appointments made by the chairman of the common council and
three appointments made by the mayor, political appointees could
control all Board decisions, including those affecting the
financial stability of ERS.
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No. 2015AP2375
¶39 We conclude that having a meaningful voice on the
Board is among the "other rights" of employees that the City was
not free to alter or modify under its home rule authority.
Accordingly, we reverse the court of appeals conclusion that
increasing the size of the Board to eleven members did not
conflict with State law.
2. Statewide concern
¶40 We next consider whether promoting financial stability
of the ERS is a matter primarily of statewide concern, primarily
of local concern or a combination of the two. Madison Teachers,
358 Wis. 2d 1, ¶96. When there is a conflict between a home
rule ordinance and countervailing state legislation, if the
matter is exclusively of statewide concern, the statute
controls. Id., ¶116; see also DeRosso Landfill Co. v. City of
Oak Creek, 200 Wis. 2d 642, 647, 547 N.W.2d 770 (1996).
¶41 Furthermore, when a law concerns a policy matter
primarily of statewide concern, home rule powers are
insufficient to permit municipal regulation of the matter.
Madison Teachers, 358 Wis. 2d 1, ¶97 (citing Van Gilder, 222
Wis. at 84.) If a matter is primarily of local concern, the
State nevertheless may regulate the matter so long as the State
does so with uniformity. Id., ¶99.
¶42 It is within the purview of the legislature to enact
statutes that regulate for the benefit of public health, safety
and welfare. Black, 369 Wis. 2d 272, ¶5. Stability of the ERS
was a concern of the legislature in 1947 when it created the
opportunity for home rule management. § 31(2), ch. 441, Laws of
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No. 2015AP2375
1947. The financial stability of the ERS affects the welfare of
present and past ERS members and their families.
¶43 Legislative protection of retirement benefits for
employees, as well as for widows and children of deceased
employees, is a matter of public welfare, and therefore,
primarily of statewide concern. Madison Teachers, 358 Wis. 2d
1, ¶97. A financially stable ERS is promoted by the
legislature's grant of the right to each employee-member to
elect three employees to serve on the Board where their number
gives a meaningful voice to employees' concern for financial
stability of the ERS. Stated otherwise, through their right to
vote to elect employees who will have Board participation with a
meaningful voice, employees can assure that present and future
financial stability of the ERS remain paramount. Accordingly,
the voting rights of individual employees for membership on a
Board that does not unduly dilute their participation supports
and is intertwined with a matter of statewide concern.
III. CONCLUSION
¶44 We conclude that the City's 2013 amendment to its
charter ordinance that reduced each individual employee-member's
right to vote for three employees of his or her choice to serve
on the Board while diluting employees' voice on the Board
modified "other rights" and therefore is contrary to State law.
Accordingly, we reverse the decision of the court of appeals in
this regard and restore the right of employee-members to vote
for three employees of their choice to serve as employee-members
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No. 2015AP2375
of the Board. We also return the Board's size to its size prior
to 2013.
By the Court.—The decision of the court of appeals is
reversed.
18
No. 2015AP2375.rgb
¶45 REBECCA GRASSL BRADLEY, J. (concurring). I join the
majority opinion but write separately to respond to the
dissents. One dissent accuses the majority of having
"manufactured" a right for the employee members of the Employee
Retirement System of Milwaukee because the statutes do not
define what "other rights" the Wisconsin legislature prohibits
the City from modifying. Justice Kelly's dissent, ¶103. But
when the legislature does not define a term, it is up to the
judiciary to identify and declare its meaning, something neither
dissent attempts. Another dissent says the majority's
recognition of employee voting rights "borders on the absurd."
Justice Abrahamson's dissent, ¶55. However, the logical
extension of the dissents' position would be to allow the City
to disband the Employee Retirement System (ERS) Annuity and
Pension Board (Board) altogether, thereby eliminating the entire
administrative structure of the ERS.1
¶46 The legislature "vested" "[t]he general administration
and responsibility for the proper operation of the retirement
system . . . in an annuity and pension board." § 7(1), ch. 396,
Laws of 1937. The legislature also "vested" in the Board the
responsibility "for making effective the provisions of this
1
The City, in fact, contends it has the right to completely
eliminate the Board. Justice Kelly’s dissent mischaracterizes
my application of the Presumption Against Ineffectiveness
principle (see Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 63 (2012)) and infra, ¶¶2, 3,
5, as a "fear that the City will act recklessly." Justice
Kelly's dissent, ¶119. My judgments are based on the law, not
on emotion or value judgments about parties' actions, and
Justice Kelly’s dissent is unable to identify any language in my
concurrence to the contrary.
1
No. 2015AP2375.rgb
act." Id. Accepting the dissents' construction of these laws
would render both provisions utterly ineffective: A retirement
system would exist for the payment of benefits to employees but
there would be no entity to administer or operate it. No entity
would exist to "mak[e] effective the provisions" of the law.
¶47 "[T]he purpose of statutory interpretation is to
determine what the statute means so that it may be given its
full, proper, and intended effect." State ex rel. Kalal v.
Circuit Court for Dane County, 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110. "A textually permissible interpretation that
furthers rather than obstructs the document's purpose should be
favored." Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 63 (2012). "This canon follows
inevitably from the facts that (1) interpretation always depends
on context, (2) context always includes evident purpose, and (3)
evident purpose always includes effectiveness." Id. "[W]e read
the language of a specific statutory section in the context of
the entire statute. Thus, we interpret a statute in light of
its textually manifest scope, context, and purpose." Bosco v.
LIRC, 2004 WI 77, ¶23, 272 Wis. 2d 586, 681 N.W.2d 157 (citing
Kalal, 271 Wis. 2d 633, ¶¶6, 48 n.8).
¶48 In this case, we interpret the word "rights" in the
context of the session laws, which gave the City "the largest
measure of self-government with respect to" the ERS, including
the right to amend and alter their provisions, except that the
City is prohibited from modifying "annuities, benefits or other
rights" of ERS members. Because the non-technical word "rights"
is not defined in the session laws, we ascertain and apply its
2
No. 2015AP2375.rgb
ordinary meaning. Town of Lafayette v. City of Chippewa Falls,
70 Wis. 2d 610, 619, 235 N.W.2d 435 (1975). A dictionary
definition may guide our interpretation of a non-technical word
the session laws do not define. Spiegelberg v. State, 2006 WI
75, ¶19, 291 Wis. 2d 601, 717 N.W.2d 641. "It has come to be
well understood that there is no more ambiguous word in legal
and juristic literature than the word 'right.'" Roscoe Pound,
The Ideal Element in Law 110 (Stephen Presser ed., Liberty Fund
2002) (1958). Black's Law Dictionary includes among its
definitions of "right" the following: "Something that is due to
a person by just claim, legal guarantee, or moral principle" and
"[a] power, privilege, or immunity secured to a person by law."
Right, Black's Law Dictionary (10th ed. 2014). Under the 1937
law, Board membership "shall consist of the following:" three
members appointed by the chairman of the common council, the
city comptroller, and three members appointed by ERS members.
§ 7(2), ch. 396, Laws of 1937. In the context of the session
laws we construe, the mandatory structure of the Board
constitutes a statutory right——something due to city employees
under the law. One dissent concludes that after the 2013
Amendment, the employees still have three representatives on the
Board, so there is no violation. Justice Kelly's dissent,
¶¶109-10. But this conclusion fails to give effect to the
textual requirement of membership consisting of seven members——
no more and no less. Because the 2013 Amendment adds three
3
No. 2015AP2375.rgb
members appointed by the mayor, it violated the session law's
mandate.2
¶49 The dissents eschew the court's interpretation of
"rights" under the session laws but both dissenters decline to
interpret the word or give it any meaning whatsoever. "It is,
of course, a solemn obligation of the judiciary to faithfully
give effect to the laws enacted by the legislature, and to do so
requires a determination of statutory meaning." Kalal, 271
Wis. 2d 633, ¶44 (emphasis added). In accordance with this
judicial duty, the court applies an interpretation that furthers
the purpose of the session laws——ensuring the security of
retirement and death benefits——by preserving the legislature's
mandate of a Board to administer and operate the ERS. The
dissents' interpretation would obstruct this express legislative
purpose by allowing the elimination of the Board, leaving the
ERS without any entity to administer or operate it. "An
interpretation that contravenes the manifest purpose" of a law
"is unreasonable." State v. Dinkins, 2012 WI 24, ¶29, 339
Wis. 2d 78, 810 N.W.2d 787.
2
Justice Abrahamson's dissent questions whether the court's
decision in this case means that the 1972 amendment, which added
the retiree position to the Board (thereby expanding its
membership to eight), is also invalid. Justice Abrahamson's
dissent, ¶99. That issue is not before us, no one apparently
contested the 1972 amendment, and our decision in this case has
no impact on that amendment. Justice Kelly's dissent
misunderstands this statement as a validation of the 1972
amendment adding a retiree member to the Board. Justice Kelly's
dissent, ¶¶125-26. Again, the court does not decide whether the
1972 amendment conforms with the Session Laws; no party
presented that issue to us.
4
No. 2015AP2375.rgb
¶50 The dissents maintain that the statutorily-prescribed
Board composition is not a right of ERS members without any
attempt to give meaning to this pivotal word. But "[w]ithout
some indication to the contrary, general words . . . are to be
accorded their full and fair scope. They are not to be
arbitrarily limited." Scalia & Garner, supra ¶3, at 101. The
dissents apparently "think that when courts confront generally
worded provisions, they should infer exceptions for situations
that the drafters never contemplated and did not intend their
general language to resolve." Id. But "[t]raditional
principles of interpretation reject this distinction because the
presumed point of using general words is to produce general
coverage——not to leave room for courts to recognize ad hoc
exceptions." Id. Our interpretive task is, of course, easier
when the legislature uses specific or defined terms, but when
the legislature speaks broadly using general terms, "they must
be given general effect." Id.
¶51 While the state legislature precluded the City from
changing the composition of the Board, the legislature itself
retains this power.3 The ERS, as well as the Board, are
3
Justice Kelly's dissent classifies my analysis as a
"petitio principii error." Justice Kelly's dissent, ¶129. In
plainer terms, he means it begs the question. This argument
distorts my analysis of the "other rights" clause. I agree with
Justice Kelly that this clause "is not a source of rights, it
only protects rights that already exist elsewhere." Id.
Justice Kelly and I simply disagree as to whether Board
composition is a right. Justice Kelly also misrepresents my
analysis by claiming that I "acknowledge the legislature can
change the Board's composition without impacting any of the ERS
members' rights." Id., ¶28. This concurrence says no such
thing. While Board composition is a right, it is statutory, not
(continued)
5
No. 2015AP2375.rgb
statutory creations. Accordingly, they remain within the
authority of the legislature to alter. And while the state
legislature delegated a broad measure of self-governance to the
City with respect to the ERS, the people's elected
representatives exempted from that transfer of authority any
changes to city employees' benefits, annuities, and other
rights. What the legislature gives, it may take away——excluding
any vested benefits. Stoker v. Milwaukee Cty., 2014 WI 130,
¶24, 359 Wis. 2d 347, 857 N.W.2d 102 ("[A] right that is
unvested, by definition, can be taken away.").
¶52 One dissent accuses the court of "roam[ing] the state
looking for good ideas to enact" and legislating instead of
adjudicating. Justice Kelly's dissent, ¶¶103, 115. Whether a
smaller Board is a better idea than a larger Board is irrelevant
to me. Discerning the meaning of a law is the essence of the
judicial function. It requires the application of canons of
interpretation, which serve as "guides to solving the puzzle of
textual meaning, and as in any good mystery, different clues
often point in different directions." Scalia & Garner, supra
constitutional. Accordingly, the legislature may change it, and
that would certainly impact members' rights. Because Board
composition is an "other right" the City may not modify it; the
legislature withheld this power from the City in its otherwise
broad delegation of authority to the City. This is not
"illogic"; it is fundamental law. See Relyea v. Tomahawk Paper &
Pulp Co., 102 Wis. 301, 304, 78 N.W. 412 (1899) ("[M]ere
statutory rights may be conferred upon such conditions as in the
wisdom of the legislature may seem best, and the conditions may
be changed from time to time, even as to existing rights, or
such rights may be taken away entirely, at the legislative
will.").
6
No. 2015AP2375.rgb
¶3, at 59. While the principles of statutory interpretation are
stable, it is not "always clear what results the principles
produce." Id. at 61. Reaching a different result does not
equate to legislating. Judges "may arrive at differing
reasonable readings because the legislature used imprecise
terms." Daniel R. Suhr, Interpreting Wisconsin Statutes, 100
Marq. L. Rev. 969, 985 (citing Landis v. Physicians Ins. Co. of
Wis., 2001 WI 86, ¶26, 245 Wis. 2d 1, 628 N.W.2d 893).4
Statutory "provisions are neither to be restricted into
insignificance, nor extended to objects not comprehended in
them." Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827).
The dissents' interpretation would render insignificant, if not
altogether eliminate, the word "rights" from the text of the
session laws. I reject such a "'viperine' construction that
kills the text." Scalia & Garner, supra ¶3, at 40. I therefore
join the court in upholding the statutory right of City
4
Apparently because the legislature did not define the word
"right" to encompass Board composition, Justice Kelly's dissent
would remove Board composition from its scope. Justice Kelly's
dissent, ¶124. Of course, the legislature did not define
"right" at all. As this concurrence explains, the legislature's
linguistic imprecision does not relieve us of our obligation to
interpret the language the legislature did use. I agree that
"[o]ur job in this case was not to delve into the [Session Laws]
to discover all of the other rights they might confer on the ERS
members . . . ." Justice Kelly's dissent, ¶127. Our
responsibility was to interpret the word "rights" and determine
whether Board composition is among them. The dissents do not
interpret the word but merely disagree with the majority's
analysis of it.
7
No. 2015AP2375.rgb
employees to the legislatively-mandated5 composition of the ERS
Board.6
¶53 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this concurrence.
5
Justice Kelly's dissent misrepresents the scope of my
analysis. Justice Kelly's dissent, ¶123. It is not the fact
that the Session Laws mandate the composition of the Board that
removes the Board structure from the otherwise broad grant of
authority of the City. That mandate, like any other in the
Session Laws, must be read in conjunction with the pivotal
language that constrains the City's ability to modify the
provisions governing the ERS under the "other rights" clause.
Not every "legislative specification" constitutes a "right" of
ERS members that the City may not disturb.
6
Justice Kelly's dissent criticizes my opinion for being
"short——to the point of nonexistence——on sources of law for its
conclusion." Justice Kelly's dissent, ¶119. We both analyze
the Session Laws, although we reach differing interpretations.
I rely on nine cases and four secondary sources, including
Black's Law Dictionary and Justice Antonin Scalia's renowned
treatise on textual interpretation, to support my eight-page
opinion. Justice Kelly cites two cases in his sixteen-page
opinion, and no precedent or authorities whatsoever in the seven
pages he devotes to attacking my concurrence.
8
No. 2015AP2375.ssa
¶54 SHIRLEY S. ABRAHAMSON, J. (dissenting). The statute
delegating authority to first class cities to administer their
own retirement systems explicitly states that the statute's
purpose is to allow all first class cities "the largest measure
of self-government with respect to pension annuity and
retirement systems[.]" § 31, ch. 441, Laws of 1947. How can
this statutory statement of purpose be squared with the
majority's interpretation of the 1947 Law? It can't.
¶55 The idea espoused by the majority that the legislature
intended to afford cities "the largest measure of self-
government with respect to pension annuity and retirement
systems" but did not intend to allow cities to change the
composition of their municipal pension boards (essentially the
governing bodies of their municipal retirement systems) borders
on the absurd.
¶56 In contrast to the majority, I would affirm the court
of appeals. I conclude that the size, composition, or manner of
election of the Pension Board set forth in the 1947 Law and
section 36-14 of the City Charter may be amended, altered, or
modified. Members of the Retirement System have the right to
have their benefit commitments fulfilled, but they do not have a
right to determine exactly how those benefit commitments are
fulfilled. Thus, I conclude that the 2013 Milwaukee Charter
Amendment did not violate the 1947 Law or Section 36-14 of the
City Charter by modifying the "annuities, benefits or other
rights" of any persons who were members of the Retirement System
prior to the effective date of the Amendment.
1
No. 2015AP2375.ssa
¶57 Rather than provide a detailed critique of the
majority opinion, I set forth below the opinion I think should
have been written by the court.
* * * *
¶58 This is a review of an unpublished per curiam decision
of the court of appeals affirming a judgment of the Circuit
Court for Milwaukee County, Timothy G. Dugan, Judge.1 The
circuit court granted the motion of the City of Milwaukee, the
defendant, for summary judgment and denied the cross-motion for
summary judgment2 of one of the plaintiffs, the Milwaukee Police
Association.3 The circuit court entered judgment in favor of the
City dismissing the Unions' complaints. The Unions appealed.
¶59 On the Unions' appeal, the court of appeals affirmed
the circuit court judgment in favor of the City. The court of
appeals concluded that the City did not violate the rights of
members of the City of Milwaukee Employes' Retirement System
when it amended section 36-15-2 of the City Charter to change
1
Milwaukee Police Ass'n v. City of Milwaukee, No.
2015AP2375, unpublished slip op. (Wis. Ct. App. Mar. 23, 2017).
2
For a discussion of cross-motions for summary judgment,
see Ziegler Co., Inc. v. Rexnord, Inc., 139 Wis. 2d 593, 595
n.1, 407 N.W.2d 873 (1987).
3
The plaintiffs are the Milwaukee Police Association and
its president, Michael Crivello (together referred to as "the
Milwaukee Police Association"), and the Milwaukee Professional
Fire Fighters Association, Local 215 and its president, David R.
Seager, Jr. (together referred to as "Local 215"). All four
plaintiffs will collectively be referred to as "the Unions."
2
No. 2015AP2375.ssa
the size, composition, and manner of election of the Annuity and
Pension Board ("the Pension Board") of the Retirement System.4
¶60 The instant case presents a single issue: whether the
City's enactment of Common Council File No. 131162 ("the 2013
Milwaukee Charter Amendment") amending section 36-15-2 of the
City Charter to alter the size, composition, and manner of
election of the Pension Board amends, alters, or modifies the
"annuities, benefits or other rights of any persons who are
4
This opinion sometimes uses the word "employe" rather than
"employee." The court of appeals in Richland School District v.
Department of Industry, Labor & Human Relations, Equal Rights
Division, 166 Wis. 2d 262, 271 n.1, 479 N.W.2d 579 (Ct. App.
1991), explained why "employe" is sometimes used in opinions
instead of the significantly more common "employee" as follows:
In a letter to the author, Professor Walter B.
Raushenbush of the University of Wisconsin Law School
explains why chapters 101 through 108, Stats., refer
to "employe" when many well-meaning lawyers and judges
refer to "employee":
My father, Paul A. Raushenbush, drafted most
of the original legislation [for ch. 108] in
1930-31, and most of the amendments through
the mid-1960's. He was director of
Wisconsin's Unemployment Compensation
Department (under the then Industrial
Commission) from roughly 1934 to 1967. I
well remember being aware that he strongly
favored the spelling with "e"——"employe."
And I recall asking him why, when "employee"
was surely the more common spelling. His
answer was that the statutes must avoid
confusion between worker and employer.
Since "e" and "r" are right next to each
other on the typewriter keyboard, there's a
real risk that "employer" might be typed
"employee," and vice-versa. The confusion
which this might cause could best be
avoided, he said, by using "employe."
3
No. 2015AP2375.ssa
members of the system prior to the effective date of such
amendment or alteration."5
¶61 The size, composition and manner of election of the
Pension Board were first detailed by the state legislature in
1937. See § 7, ch. 397, Laws of 1937. In 1947, the state
legislature granted all first class cities, including the City
of Milwaukee, the authority to amend the 1937 Law as applied to
their retirement systems, except that "no such amendment or
alteration shall modify the annuities, benefits or other rights
5
The Milwaukee Police Association sets forth four issues in
its petition for review:
1. Whether a Municipality May Lawfully Disregard
Specific Requirements the Legislature Has Placed on
the Municipality, by Simply Passing an Ordinance at
Odds with the Law?
2. Whether Home Rule Allows the City to Avoid the
Mandates Identified by the Legislature in the Session
Laws of 1937 and 1947?
3. Whether the Session Laws of 1937 and 1947 Vested
ERS Members with the Right to Vote for and Seat ERS
Board Members?
4. Whether the Decision below Is in Conflict with the
Decisions of this Court in Van Gilder v. City of
Madison and Johnston v. City of Sheboygan?
The Milwaukee Professional Fire Fighters Association, Local
215, sets forth a single issue in its petition for review:
1. Whether a Municipality May Ignore the Legislature's
Specific Mandates Regarding the Size and Composition
of the Pension Board Simply by Passing its Own
Ordinance?
The single issue I present in effect addresses the issues
set forth in both petitions for review and is dispositive.
4
No. 2015AP2375.ssa
of any persons who are members of the system prior to the
effective date of such amendment or alteration." See § 31, ch.
441, Laws of 1947 (emphasis added).
¶62 I conclude that the 2013 Milwaukee Charter Amendment
altering the size, composition, and manner of election of the
Pension Board is valid. Neither the size, composition, nor
manner of election of the Pension Board is an annuity, benefit,
or other right of the members of the Retirement System. Thus,
the 2013 Milwaukee Charter Amendment does not modify "annuities,
benefits or other rights" of any persons who are members of the
Retirement System prior to the effective date of the amendment,
alteration, or modification.
¶63 Accordingly, I would affirm the decision of the court
of appeals.
I
¶64 The facts are brief and undisputed. In 2013, the City
of Milwaukee amended section 36-15-2 of the Milwaukee City
Charter. This 2013 Milwaukee Charter Amendment provision sets
forth the membership of the Pension Board; it changed the size
and composition of the Pension Board and the manner in which
Pension Board members were elected.
¶65 Prior to 2013, the Pension Board, which had been
changed from its original size and composition by a 1972
amendment to the City Charter, was made up of eight members:
three actively employed city employees elected to the Pension
Board by actively employed city employees; one retiree elected
5
No. 2015AP2375.ssa
by retirees; three appointed by the President of the Common
Council; and the City's elected Comptroller, ex officio.
¶66 The 2013 Milwaukee Charter Amendment added three
mayoral appointments to the Pension Board for a total of eleven
members. The 2013 Milwaukee Charter Amendment also dictated
that of the three actively employed city employees on the
Pension Board, one must be an active employee of the police
department, one must be an active employee of the fire
department, and the remaining member must be an active employee
of a non-public safety department. Only active police officers
may vote to elect the required Pension Board member from the
police department. Only active fire fighters may vote to elect
the required Pension Board member from the fire department.
Finally, only active general (i.e., non-public safety) city
employees may vote to elect the required Pension Board member
from a non-public safety department.
¶67 The Milwaukee Police Association commenced the instant
lawsuit, seeking a declaratory judgment that the 2013 Milwaukee
Charter Amendment violated the Retirement System members' vested
rights in the size and composition of the Pension Board and the
Retirement System members' vested right to elect members to the
Pension Board without being limited to voting only for members
in their same employment classification.6 Local 215 of the
Milwaukee Professional Fire Fighters Association was allowed to
6
The Unions sometimes refer to their purported right as the
right to proportional representation on the Pension Board.
6
No. 2015AP2375.ssa
intervene, and its position is essentially the same as that of
the Milwaukee Police Association.
¶68 The circuit court granted summary judgment in favor of
the City and denied the Milwaukee Police Association's cross-
motion for summary judgment. The circuit court concluded that
the members of the Retirement System did not have "a specific
right to the makeup of the [Pension Board]" and that the 2013
Milwaukee Charter Amendment modifying "the makeup of the
[Pension Board] does not affect any of the rights of the
members . . . ." The circuit court entered judgment in favor of
the City. The Unions appealed to the court of appeals.
¶69 The court of appeals affirmed the judgment of the
circuit court. It "conclude[d] that the City is entitled to
amend, on a prospective basis, matters related to the size,
composition, and manner of election of the pension board[]
because the members of the retirement system do not have any
rights in those matters."7
¶70 The court granted the Unions' petition to review the
decision of the court of appeals. For the reasons set forth, I
would affirm the decision of the court of appeals.
II
¶71 The court is asked to determine the meaning and
validity of the 2013 Milwaukee Charter Amendment. These are
questions of law that this court decides independently of the
7
Milwaukee Police Ass'n v. City of Milwaukee, No.
2015AP2375, unpublished slip op., ¶42 (Wis. Ct. App. Mar. 23,
2017).
7
No. 2015AP2375.ssa
circuit court and court of appeals, benefiting from the analyses
of the latter two courts. Megal Dev. Corp. v. Shadof, 2005 WI
151, ¶8, 286 Wis. 2d 105, 705 N.W.2d 645.
III
¶72 To respond to the questions of law presented, I begin
by examining the relevant 1937 and 1947 Laws the legislature
enacted and the City's history of amending its Charter regarding
the composition and election of members of the Pension Board.
¶73 In 1937, the legislature created the Pension Board and
granted it administrative authority over the operation of the
Retirement System.8 The 1937 Law detailed the membership of the
Pension Board as follows:
(2) MEMBERSHIP. The membership of the board shall
consist of the following:
(a) Three members to be appointed by the chairman of
the common council or other governing body (subject to
the confirmation by such common council or other
governing body), for a term of three years,
(b) The city comptroller ex-officio,
(c) Three employe members who shall be members of the
retirement system and who shall be elected by the
members of the retirement system for a term of three
years according to such rules and regulations as the
board shall adopt to govern such election. The
initial terms of the first three members so elected
shall expire at the end of one, two and three years,
8
§ 7, ch. 396, Laws of 1937. Section 7(1) states: "The
general administration and responsibility for the proper
operation of the retirement system and for making effective the
provisions of this act are hereby vested in an annuity and
pension board which shall be organized immediately after the
first four members provided for in this section have qualified
and taken the oath of office." § 7(1), ch. 396, Laws of 1937.
8
No. 2015AP2375.ssa
respectively. Following the completion of the initial
terms, the terms of the office of such members shall
be three years.
§ 7(2), ch. 396, Laws of 1937.
¶74 To allow cities "the largest measure of self-
government with respect to pension annuity and retirement
systems," in 1947, the legislature empowered "cities of the
first class," including the City of Milwaukee, as follows:
to amend or alter the provisions of [the 1937 Law] in
the manner prescribed by section 66.01 of the
statutes; provided that no such amendment or
alteration shall modify the annuities, benefits or
other rights of any persons who are members of the
system prior to the effective date of such amendment
or alteration.9
¶75 The 1947 Law explicitly granted employees "a vested
right" to the "annuities and other benefits" offered by the
Retirement System and declared that these rights "shall not be
diminished or impaired by subsequent legislation or by any other
means without [members'] consent." See § 30(2)(a), ch. 441,
Laws of 1947.
¶76 The City codified the pertinent part of the 1947 Law
in section 36-14 of its Charter as follows:
36-14. Home Rule. For the purposes of giving to cities
of the first class the largest measure of self-
government with respect to pension, annuity and
retirement systems compatible with the constitution
and general law, it is hereby declared to be the
legislative policy that all future amendments and
alterations to this act are matters of local affair
and government and shall not be construed as an
enactment of statewide concern. Cities of the first
class are hereby empowered to amend or alter the
9
§ 31, ch. 441, Laws of 1947 (emphasis added).
9
No. 2015AP2375.ssa
provisions of this act in the manner prescribed by s.
66.0101, Wis. Stats., provided that no such amendment
or alteration shall modify the annuities, benefits or
other rights of any persons who are members of the
system prior to the effective date of such amendment
or alteration.
Milwaukee Charter § 36-14 (emphasis added).
¶77 Since the enactment of the 1947 Law and the
codification of pertinent parts in section 36-14 of the City
Charter, the City has amended the size, composition, and manner
of election of the members of the Pension Board. For example,
in 1967, the City Charter was amended to delete obsolete
provisions and to revise language pertaining to elected active-
employee members of the Pension Board who reach compulsory
retirement age during their respective terms. In 1972, a new
position on the Pension Board was created to be filled by a
retired city employee elected by other retired city employees.
In 1980, the term of Pension Board members was extended from
three to four years except for the City Comptroller, whose term
remained ex officio. In 1996, the term of the three Pension
Board members appointed by the President of the Common Council
was reduced from four to two years.
¶78 The instant case centers around the 2013 Milwaukee
Charter Amendment altering the size, composition, and manner of
election of the members of the Pension Board. The 2013
Milwaukee Charter Amendment added three mayoral appointments to
the Pension Board for a total of eleven members. It also
directed that of the three actively employed city employees on
the Pension Board, one must be an active employee of the police
department, one must be an active employee of the fire
10
No. 2015AP2375.ssa
department, and the remaining member must be an active employee
of a non-public safety department. Only active police officers
may vote to elect the required Pension Board member from the
police department. Only active fire fighters may vote to elect
the required Pension Board member from the fire department.
Finally, only active general (i.e., non-public safety) city
employees may vote to elect the required Pension Board member
from a non-public safety department.
IV
¶79 This court must determine whether the 2013 Milwaukee
Charter Amendment altering the size, composition, and manner of
election of the members of the Pension Board violates the 1947
Law and section 36-14 of the City Charter.
¶80 I begin with the texts of the 1947 Law and section 36-
14 of the City Charter. The 1947 Law and section 36-14 of the
City Charter discussed above contain identical language. They
both acknowledge a grant of authority to first class cities to
amend, alter, or modify the City Charter, with one exception:
"[N]o such amendment or alteration shall modify the annuities,
benefits or other rights of any persons who are members of the
system prior to the effective date of such amendment or
alteration."10
¶81 Everyone seems to agree that voting for election of
members of the Pension Board does not fall within "annuities or
benefits" under the 1947 Law. The questions presented are
10
§ 31, ch. 441, Laws of 1947; Milwaukee City Charter § 36-
14 (emphasis added).
11
No. 2015AP2375.ssa
whether voting for election of members of the Pension Board and
retaining a Pension Board of a particular size and composition
fall within the phrase "other rights" in the 1947 Law.
¶82 The Unions argue that one of their "other rights"
protected from amendment or alteration under the 1947 Law and
section 36-14 of the City Charter is the right to a Pension
Board that is of a particular size and composition and whose
members are voted for in a particular manner.
¶83 Resolving the meaning of the legislative phrase "other
rights" may be aided by applying the ejusdem generis canon of
statutory interpretation. This canon of interpretation "uses
context to elicit meaning from statutory language" and provides
that "when general words follow specific words in the statutory
text, the general words should be construed in light of the
specific words listed." Milwaukee Journal Sentinel v. DOA, 2009
WI 79, ¶44, 319 Wis. 2d 439, 768 N.W.2d 700 (quoting State v.
Quintana, 2008 WI 33, ¶27, 308 Wis. 2d 615, 748 N.W.2d 447).
¶84 The specific words "annuities" and "benefits" may thus
guide the meaning of the phrase "other rights." Adhering to the
canon of ejusdem generis and construing general words in light
of the specific words in the same list, I conclude that the
general words "other rights" in the 1947 Law and section 36-14
of the City Charter refer, as do the words "annuities" and
"benefits," to members' financial or monetary advantages or
services rendered to members. Accordingly, under the language
of the 1947 Law and section 36-14 of the City Charter, first
class cities are authorized to amend the 1937 Law, but no such
12
No. 2015AP2375.ssa
amendments may alter any members' annuities, benefits, or
members' rights to financial or monetary advantages or services
to which they have become entitled prior to the effective date
of the amendment.
¶85 The Unions' claimed right to a Pension Board of a
particular size, composition, and manner of election is
inconsistent with my interpretation of "other rights" under the
1947 Law and section 36-14 of the City Charter.11 The Unions'
claimed right is unlike an annuity or a retirement benefit,
which contemplate the payment of money or delivery of a service
to a beneficiary.
¶86 My conclusion that the Unions do not have a right to a
Pension Board of a particular size, composition, and manner of
election is supported by the case law.
¶87 In Wisconsin Professional Police Ass'n, Inc. v.
Lightbourn, 2001 WI 59, 243 Wis. 2d 512, 627 N.W.2d 807, the
plaintiffs challenged the constitutionality of a statute making
numerous changes to the Wisconsin state retirement system. The
statute's changes were "relat[ed] to: benefit improvements,
11
The Unions also argue that their right in the size,
composition, and manner of election of the Pension Board is
established in their collective bargaining agreements. The
collective bargaining agreements state: "The City agrees not to
diminish any contractual pension and annuity rights presently
vested in any employee including any rights enumerated herein."
I reject the Unions' interpretation of their collective
bargaining agreements for the same reason I reject their
interpretations of the 1947 Law and section 36-14 of the City
Charter. The reference to "pension and annuity rights" does not
refer to a right to determine how those benefit obligations are
fulfilled.
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interest crediting, variable annuity option, contribution
credits for employers, death benefits, credit for legislative
service, recognition of income and capital gains and losses in
the fixed retirement investment trust and affecting certain
actuarial assumption and liabilities under the Wisconsin
retirement system." Lightbourn, 243 Wis. 2d 512, ¶39. The
court rejected the plaintiffs' argument in Lightbourn that these
changes amounted to an unconstitutional taking, explaining that
participants in the Wisconsin retirement system have a right to
have their benefit commitments fulfilled, but they do not have a
"right to determine exactly how employers fulfill their benefit
commitments." Lightbourn, 243 Wis. 2d 512, ¶179.
¶88 In Bilda v. Milwaukee County, 2006 WI App 57, 292
Wis. 2d 212, 713 N.W.2d 661, the plaintiffs brought a class
action lawsuit against Milwaukee County alleging that changes to
the Milwaukee County Ordinances governing the county's
retirement system constituted an unconstitutional taking. The
challenged ordinance changed the way in which administrative
expenses are paid.
¶89 Discussing and applying Lightbourn, the Bilda court of
appeals rejected the plaintiffs' challenge, concluding that "the
system participants do not have a right to dictate how, within
the requirements and limitations imposed by law, the system is
administered and funded on a day-to-day or year-to-year basis."
Bilda, 292 Wis. 2d 212, ¶14.
¶90 The Unions' claimed right to the size, composition,
and manner of election of the members of the Pension Board is
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akin to asserting the rights the Bilda court rejected, namely
the rights to dictate how employers fulfill their benefit
commitments and how the system is administered on a day-to-day
basis.
¶91 Moreover, the Unions' analyses of statutory and
constitutional home rule are misguided. Under a statutory home
rule analysis, a four-factor test is used to determine whether a
statute preempts a local ordinance. "A municipal ordinance is
preempted if (1) the legislature has expressly withdrawn the
power of municipalities to act; (2) it logically conflicts with
state legislation; (3) it defeats the purpose of state
legislation; or (4) it violates the spirit of state
legislation." DeRosso Landfill Co. Inc. v. City of Oak Creek,
200 Wis. 2d 642, 651-52, 547 N.W.2d 770 (1996) (footnotes
omitted). The instant case does not involve these situations.
¶92 First, the legislature has not expressly withdrawn the
power of municipalities to act regarding the 1937 Law. Instead,
the 1947 Law granted first class cities like the City of
Milwaukee the power to amend the 1937 Law as it applies to the
retirement system except that "no such amendment or alteration
shall modify the annuities, benefits or other rights of any
persons who are members of the system prior to the effective
date of such amendment or alteration." As I explained above,
the 2013 Milwaukee Charter Amendment does not modify "the
annuities, benefits or other rights" of any persons who were
members of the Retirement System prior to the effective date of
the amendment or alteration.
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¶93 Second, the 2013 Milwaukee Charter Amendment does not
logically conflict with the 1947 Law.12 The 2013 Milwaukee
Charter Amendment does not contradict the directive in the 1947
Law that a municipality may not alter, amend, or modify the
annuities, benefits, or other rights of any persons who are
members of the system prior to the effective date of the
amendment.
¶94 Third, the 2013 Milwaukee Charter Amendment does not
defeat the purpose of the 1947 Law. An ordinance may be invalid
if it frustrates the purpose of a legislative enactment.13
¶95 The purpose of the 1947 Law was to allow cities "the
largest measure of self-government with respect to pension
annuity and retirement systems" while protecting against an
amendment or alteration that modifies the annuities, benefits,
or other rights of persons who were members of the retirement
system prior to the effective date of an amendment.14 The 2013
12
See Wisconsin's Envt'l Decade, Inc. v. DNR, 85
Wis. 2d 518, 534-35, 271 N.W.2d 69 (1978) (a city ordinance
preventing chemical treatment in Madison lakes logically
conflicted with the DNR's statutory power to "supervise chemical
treatment of waters").
13
In Wisconsin's Environmental Decade, Inc. v. Department
of Natural Resources, 85 Wis. 2d 518, 535-36, 271 N.W.2d 69
(1978), for example, the court stated that even assuming that
the ordinance and statute at issue are not "logically
conflicting," the ordinance was nevertheless invalid because it
frustrated the state program of water resource management and of
vesting authority over the state's navigable waters in the
Department of Natural Resources.
14
See § 31(1), ch. 441, Laws of 1947 (emphasis added):
For the purpose of giving to cities of the first class
the largest measure of self-government with respect to
(continued)
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Milwaukee Charter Amendment is a lawful exercise of the
authority granted to first class cities under the 1947 Law,
fulfills the purpose of the 1947 Law, and does not make any
prohibited amendment, alteration, or modification to members'
annuities, benefits, or other rights.
¶96 Fourth and finally, nothing in the 2013 Milwaukee
Charter Amendment supports the Unions' argument that changes to
the size, composition, and manner of election of the Pension
Board violate the spirit of the 1947 Law.15 Rather, the 2013
Milwaukee Charter Amendment comports with the spirit of the 1947
Law: The 1947 Law allows cities the largest extent of self-
government possible while protecting against amendment,
alteration, or modification of members' annuities, benefits, or
other rights.
pension annuity and retirement systems compatible with
the constitution and general law, it is hereby
declared to be the legislative policy that all future
amendments and alterations to this act are matters of
local affair and government and shall not be construed
as an enactment of statewide concern. Cities of the
first class are hereby empowered to amend or alter the
provisions of this act in the manner prescribed by
section 66.01 of the statutes; provided that no such
amendment or alteration shall modify the annuities,
benefits or other rights of any persons who are
members of the system prior to the effective date of
such amendment or alteration.
15
In Anchor Savings & Loan Ass'n v. Equal Opportunities
Commission, 120 Wis. 2d 391, 397-99, 402, 355 N.W.2d 234 (1984),
the court concluded that the legislature had "adopted a complex
and comprehensive statutory structure" regulating credit and
lending, as well as a "complete, all-encompassing plan"
regulating savings and loan associations, rendering the Madison
ordinance at issue void as "contrary to the spirit" of the
legislation.
17
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¶97 The Unions' constitutional home rule argument fares no
better. The Home Rule Amendment to the Wisconsin Constitution
reads: "Cities and villages organized pursuant to state law may
determine their local affairs and government, subject only to
this constitution and to such enactments of the legislature of
statewide concern as with uniformity shall affect every city or
every village. The method of such determination shall be
prescribed by the legislature." Wis. Const. art. XI, § 3(1).
¶98 The Unions argue that although the legislature
declared that any future modifications to the Retirement System
would be a matter of local concern, it specifically excepted
from that grant of authority the ability to modify rights that
had already accrued. However, as I explained above, members of
the Retirement System do not have a right in a Pension Board of
a particular size, composition, or manner of election.
¶99 Before concluding, I pause to acknowledge the
implications of the Unions' asserted right in the instant case.
Recognizing the Unions' claimed right to proportional
representation on the Pension Board or to a Pension Board of a
particular size, composition, and manner of election would limit
to a breathtaking extent the City's authority to amend the 1937
Law. If members are vested with the right to a Pension Board of
a particular size, composition, and manner of election based
upon the date at which the member joined the Retirement System,
must the City create new pension boards that administer the
Retirement System for different classes of members? If the 2013
Milwaukee Charter Amendment is invalid, is the 1972 amendment,
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which added the retiree position on the Pension Board, invalid
for the same reasons? On what possible basis would adding a
seat in 1972 be valid, but adding three seats in 2013 be
invalid? Multiple boards of various sizes and compositions
administering the Retirement System to numerous classes of
Retirement System members would be an unworkable system.
V
¶100 The size, composition, or manner of election of the
Pension Board set forth in the 1947 Law and section 36-14 of the
City Charter may be amended, altered, or modified. Members of
the Retirement System have the right to have their benefit
commitments fulfilled, but they do not have a right to determine
exactly how those benefit commitments are fulfilled. Thus, I
conclude that the 2013 Milwaukee Charter Amendment did not
violate the 1947 Law or section 36-14 of the City Charter. The
2013 Milwaukee Charter Amendment did not "modify the annuities,
benefits or other rights" of any persons who were members of the
Retirement System prior to the effective date of the 2013
Milwaukee Charter Amendment.
* * * *
¶101 For the reasons set forth, I dissent.
¶102 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
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¶103 DANIEL KELLY, J. (dissenting). Well, this is surely
curious. Today, the court manufactured and conferred on the
employee members of the Employee Retirement System of Milwaukee
("ERS") a right to proportional representation on the ERS
Annuity and Pension Board (the "Board"). We also manufactured
and conferred on them the right to conduct at-large (as opposed
to class-based) elections for their representatives. These
rights don't actually exist anywhere in the constitution,
statutes, regulations, or common-law, so we had to create them
ex nihilo. They may be good and salutary rights for the
employee members to have, but this is a question not given to
the judiciary to answer. We have no mandate to roam the state
looking for good ideas to enact. We exhaust our commission when
we pronounce the law as applied to the case before us, and we
should be content with that. We were definitely not content
with that role today.
¶104 The court found the employee members' right to elect
no fewer than 3/8's of the Board's members (after accounting for
the retired employees' representative added in 1972), and the
right to an undivided franchise, in this distinctly pedestrian
language:
The membership of the board shall consist of the
following:
(a) Three members to be appointed by the chairman of
the common council or other governing body (subject to
the confirmation by such common council or other
governing body), for a term of three years,
(b) The city comptroller ex-officio,
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(c) Three employe members who shall be members of the
retirement system and who shall be elected by the
members of the retirement system for a term of three
years according to such rules and regulations as the
board shall adopt to govern such election. . . .
§ 7(2), ch. 396, Laws of 1937 (the "1937 Law").
¶105 If, as the court says, the employees' rights come from
this statute, we ought to be able to find them there. This
presents a simple matter of statutory construction. Typically,
when we set out to discover the meaning of a statute, we start
with its language. See State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
("[S]tatutory interpretation 'begins with the language of the
statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry.'" (citation omitted)).
¶106 Here, however, this method hits an immediate dead-end.
The 1937 Law does not say the employees have a right to a
minimum percentage of board seats. Nor does it so much as imply
the employees have a right to elect their representatives at
large, rather than by class. To the extent this statutory
provision mentions the employees at all, it simply says the
Board will contain three employee representatives, and those
representatives will be elected by the employees. Our standard
method of statutory construction tells us to stop here and tell
the members of the Milwaukee Police Association ("MPA") and
members of the Milwaukee Professional Fire Fighters Association
("MPFFA") that the rights they seek are not there.
¶107 But perhaps this is one of those instances in which
the claimed statutory rights are not immediately apparent, and
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fluoresce only in the presence of the violation. The court said
the City trespassed on the employees' rights when, in a 2013
city charter amendment ("2013 Amendment"), it added three
mayoral appointees to the Board and established voting classes.
See majority op., ¶4. With respect to the latter revision, the
amendment provides that members of the MPA would vote for one of
their own to represent them on the Board, members of the MPFFA
would do the same, and the remaining employees would vote for a
third representative. See Milw., Wis., Charter Ord. § 36-15-
2(a-3)(c).
¶108 So let's compare the results of the 2013 Amendment to
the provisions of the 1937 Law. Before the amendment, the
employees had three representatives on the Board. After the
amendment, the employees had three representatives on the Board.1
Before the amendment, the employee representatives were "elected
by the members of the retirement system." See § 7(2)(c), ch.
396, Laws of 1937. After the amendment, the employee
representatives were "elected by the members of the retirement
system." See Milw., Wis., Charter Ord. § 36-15-2(a-3)(c).
True, they were elected by classes, but each class is composed
exclusively of members of the retirement system. Therefore,
because no one but a member of the retirement system voted for
any of the employee representatives, it is necessarily true that
1
The employees also gained an ally when, in 1972, the City
added a representative of retired employees to the Board.
Nothing in the 2013 amendment affected that position. See
Milw., Wis., Charter Ord. § 36-15-2(d).
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they were each "elected by the members of the retirement
system." So the alleged violation fluoresces nothing.
¶109 It is, however, entirely understandable that the MPA
and the MPFFA would not favor the 2013 Amendment——it reduced the
employee members' influence on the board from 3/8's to 3/11's.
And voting by class means the MPA and the MPFFA cannot elect
more than one of their members to the Board. But the question
we are to answer is not whether the 2013 Amendment is good for
the MPA or MPFFA; it is whether the City had the authority to
enact it.
¶110 The authority to alter the administration of the ERS
came from a 1947 statute——the same statute, ironically, that the
court says restricts the City's authority to do what it did:
For the purpose of giving to cities of the first class
the largest measure of self-government with respect to
pension annuity and retirement systems compatible with
the constitution and general law . . . [c]ities of the
first class are hereby empowered to amend or alter the
provisions of this act in the manner prescribed by
section 66.01 of the statutes; provided that no such
amendment or alteration shall modify the annuities,
benefits or other rights of any persons who are
members of the system prior to the effective date of
such amendment or alteration.
§ 31(1), ch. 441, Laws of 1947 ("1947 Law"). The legislature
decided that the City is to have the "largest measure of self-
government," with respect to the ERS, that is "compatible with
the constitution and general law."
¶111 To accomplish that purpose, the 1947 Law explicitly
and unambiguously authorized "[c]ities of the first
class . . . to amend or alter the provisions of this act," which
includes the size of the board and the manner of its elections.
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Id. This broad delegation of authority to the City is subject
only to the restriction that, as relevant here, it may not
"modify the . . . other rights" of the ERS's members.
Consequently, unless the employee members can identify a
specific right the 2013 Amendment violated, this statute
unquestionably says the City may do what it did.
¶112 The court started its analysis on the weakest possible
footing. It acknowledges, as it must, that "other rights" has
no statutory definition and that there is no actual language in
either the 1937 Law or the 1947 Law that creates the rights it
discovers today. See majority op., ¶28. If we followed our
standard method of statutory construction, we would have quit
the field and informed the MPA and MPFFA that the rights they
sought cannot be found in any applicable source of authority.
But we didn't quit.
¶113 With no text upon which to rely, we thought to peer
behind the legislative curtain in hopes of discovering what
rights the legislature meant to confer, but forgot to put in the
act they actually adopted. So the court turned to the purpose
of the 1947 Law. Majority op., ¶29. Assessing the purpose of a
statute can be helpful in discerning its plain meaning, but we
refer to the purpose to explain the text, not create substantive
rights. "Statutory purpose is important in discerning the plain
meaning of a statute." Westmas v. Creekside Tree Serv., Inc.,
2018 WI 12, ¶19, 379 Wis. 2d 471, 907 N.W.2d 68 (citing Kalal,
271 Wis. 2d 633, ¶48).
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¶114 The court fared no better questing after a legislative
purpose than it did with finding textual support for its desired
result. The best it could do was an observation that the
"'purpose of safeguarding the stability of pension systems' was
an important concern" for the legislature. Majority op., ¶31
(quoting § 31(2), ch. 441, Laws of 1947). The court quoted only
a sentence fragment because the sentence has nothing to do with
the court's project. The sentence actually refers to the
importance of a pension study committee: "For the further
purpose of safeguarding the stability of pension systems in
cities of the first class, the governing body shall appoint a
pension study commission which shall have jurisdiction over all
proposed amendments, alterations and modifications to existing
pension, annuity, or retirement systems." See § 31(2), ch. 441,
Laws of 1947.
¶115 It's anyone's guess how the importance of a pension
study commission relates to proportional voting rights or at-
large elections. Nonetheless, the court immediately divined
from this that what the legislature was really saying is that
"[s]afeguarding ERS stability is promoted by employee-
participation in the Board because it is employees, current and
past, for whom stability of the ERS is critical. Preamble to
ch. 396, Laws of 1937." Majority op., ¶31. It certainly
couldn't have found support for that proposition in the Preamble
it cited, because the Preamble merely says, in full: "An Act
relating to the establishment and administration of retirement
systems in cities of the first class for the payment of benefits
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to the employes of such cities, and to the widows and children
of such employes." Preamble to ch. 396, Laws of 1937.2
2
Even as legislative analysis, the court errs. It says:
Employees have the most to gain from a financially
stable ERS because the ERS directly impacts their
financial security upon retirement. In addition, it
is employees who will suffer most if ERS funds are
lent to a cause that returns a worthless promissory
note in exchange for the funds that the Board manages,
as has occurred in other states.
Majority op., ¶32 (footnote omitted).
But this just isn't so. The ERS's financial stability has
no effect on the employees' financial security at all.
Liability for retirement benefits belongs to the City, and the
City must pay them regardless of whether the ERS has any funds
to manage:
[T]he payment of all pensions, annuities, retirement
allowances, refunds, and other benefits granted under
the provisions of this act and all expenses in
connection with the administration and operation of
the retirement system are hereby made obligations of
the city and city agencies.
§ 27, ch. 441, Laws of 1947. And these obligations are due to
the employees as vested contractual rights that cannot be
reduced without their consent:
The annuities and all other benefits in the amounts
and upon the terms and conditions and in all other
respects as provided in the law under which the system
was established as such law is amended and in effect
on the effective date of this act shall be obligations
of such benefit contract on the part of the city and
of the board administering the system and each member
and beneficiary having such a benefit contract shall
have a vested right to such annuities and other
benefits and they shall not be diminished or impaired
by subsequent legislation or by any other means
without his consent.
§ 30(2)(a), ch. 441, Laws of 1947.
(continued)
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¶116 Et voilà, the sum total of the law's purpose: A
declaration that a pension study commission would be important
to the stability of the retirement system, and a Preamble that
states the obvious. Somehow, however, the court transmuted this
into the right to proportional representation on the Board and
at-large elections. And it said its discovery was supported not
by some vague musings, but by the legislature's clear purpose:
"With that clearly stated purpose in mind, the phrase, 'other
rights' easily encompasses employee voting rights because
employee members of the Board are in a unique position to
oversee the Board's use of funds and thereby safeguard the
financial stability of the ERS." Majority op., ¶32. If there
is hidden somewhere in there a legislatively-expressed purpose
having anything at all to do with voting rights, it is quite
obviously not clear. But let's be frank. It's not really there
at all.
Actually, the people with the most interest in the ERS's
financial stability are not the employees, but the taxpayers of
the City of Milwaukee, who are ultimately liable for the ERS's
financial obligations through the imposition of additional
taxes:
In order to meet the requirements of this act, the
common council or other governing body or city agency
is authorized to levy a tax annually, which tax shall
be in addition to all other taxes such common council
or other governing body or city agency has been
authorized to levy upon all taxable property, real and
personal.
§ 23(b), ch. 441, Laws of 1947.
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¶117 We are not giving voice to the legislature's purpose.
We are defying it. The legislature said, in the text it
actually adopted, that the City has the authority to amend the
act, the very act that establishes the Board's composition and
describes the elections of its members. Upon the City's
exercise of its legislatively-granted authority, however, we
imposed our will, our veto. Using the catch-all "other rights"
provision as a window into the hidden depths of the
legislature's very soul, we purportedly saw its "clear purpose"
to create and preserve a right to proportional representation
and at-large elections, rights so critical to the preservation
of the retirement system that the legislature made no mention of
them at all. What we should have seen were red flags sprouting
up all around us as we privileged judicially-intuited ephemera
over the text the people's representatives actually adopted.
¶118 If we were sitting as a legislature, the "purposes"
the court attributed to the legislature might be enough to
conclude we should grant the employees the voting rights they
seek. But as a court, our task is different. We are trying to
decide whether the legislature, in fact, did grant those rights.
On that question, the court's opinion provides no analysis or
information. It ticks off all the prudential reasons the
employees ought to have proportionate representation and at-
large elections, but it never guides its analysis back to actual
legislative text. So the court offers no non-legislative
justification for the court's decision.
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¶119 Neither does the concurring opinion, which is long on
general rules of statutory construction, and short——to the point
of nonexistence——on sources of law for its conclusion. Its
analysis rests on three propositions. The first relates to the
author's fear that the City will act recklessly: "[T]he logical
extension of the dissents' position would be to allow the City to
disband the Employee Retirement System (ERS) Annuity and Pension
Board (Board) altogether, thereby eliminating the entire
administrative structure of the ERS." Concurrence, ¶1. The second
proposition is that what the legislature provides, only the
legislature may take away. Specifically, it says allowing the City
to change the Board's composition would ignore the "textual
requirement of membership consisting of seven members——no more
and no less." Id., ¶4. And the third is that we must give the
"other rights" provision something to do to save it from
surplusage. None of these propositions support the rights the
court creates today.
¶120 The concurrence's first proposition is none of our
concern. Yes, it is theoretically possible the City would
eliminate the Board. But the legislature could do the same
thing, and the concurrence knows it. See id., ¶7. Would we
tell the legislature the composition of the Board is now frozen
for all time because we are worried it might recklessly fiddle
with it, or even dispense with it altogether? If not, where do
we get the authority to say that to the City? Yes, the City may
act imprudently, something cities have always had the authority
to do. We have never had a shepherd's crook with which to steer
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governmental entities away from unwise decisions, and we should
not be yearning after one.
¶121 Further, if the City chose to eliminate the Board, why
should that be a matter of any interest to us? The concurrence
says this would "leav[e] the ERS without any entity to
administer or operate it." Id., ¶5. That presumes an awful
lot. Perhaps the City would choose to replace the Board with a
managerial staff. Such an arrangement would still allow the
system to operate. But let's assume the City really does want
to sabotage the retirement system, and that it will do so by
eliminating the Board and leaving the management space entirely
void. If that decision had the effect of altering or modifying
the members' annuities or benefits (by, for instance, making it
impossible to collect them), then we would have something to
say. But only because the 1947 Law prohibits the City from
altering or modifying the members' annuities or benefits. See §
31(1), ch. 441, Laws of 1947 (providing that no "amendment or
alteration shall modify the annuities, benefits or other rights
of any persons who are members of the system prior to the
effective date of such amendment or alteration.").
¶122 So the concurrence's first proposition expresses not a
legal concern, but a distrust in either the City's good faith or
its ability to avoid self-destructive decisions. Either way,
this is not a matter for judicial attention.
¶123 The concurrence's second proposition——what the
legislature gives, only the legislature may take——proves far,
far too much. It proves so much, in fact, that it contradicts
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the legislature's express grant of authority to the City. The
concurrence says it sees in the 1937 Law a "textual requirement
of membership [in the Board] consisting of seven members——no
more and no less." Concurrence, ¶4. The legislature didn't say
the Board would never be larger or smaller than seven members,
of course. It simply specified its composition. But if the
concurrence is right about the effect of legislative
specifications, then the transfer of authority over the ERS to
the City completely failed. Together, the 1937 Law and the 1947
Law specify all of the particulars of the ERS. So if the City
cannot change the Board's composition because it was specified
by the legislature, then the City may not change any part of the
ERS because the entirety of the program was established through
legislative specification. That, however, would mean the
legislature's directive that "[c]ities of the first class are
hereby empowered to amend or alter the provisions of this act,"
§ 31(1), ch. 441, Laws of 1947, has no meaning.
¶124 But the legislature's directive does have meaning. It
means what it so obviously says——the City may change any part of
the act (all of which are legislative specifications) so long as
it does not alter or modify annuities, benefits, or other
rights. The concurrence identified nothing about the Board's
composition that made it more special than any other
specification in the act. And the legislature didn't breathe so
much as a word about the members having a right to a Board with
an unchanging composition. Therefore, the City may change it as
readily as it may change any other legislative specification in
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the act. And that means the concurrence's central rationale
directly contradicts what the legislature actually said.
¶125 Beyond that, the concurrence contradicts itself on
this very point. Apparently, under certain circumstances the
concurrence does not identify, the City does have the authority
to change the composition of the Board. Within two sentences of
saying the Board must have seven members ("no more and no
less"), it said the court's decision will not affect the City's
decision to increase the Board to eight members:
Justice Abrahamson's dissent questions whether
the court's decision in this case means that the 1972
amendment, which added the retiree position to the
Board (thereby expanding its membership to eight), is
also invalid. That issue is not before us, no one
apparently contested the 1972 amendment, and our
decision in this case has no impact on that amendment.
Concurrence, ¶4 n.2 (citation omitted).
¶126 If the legislature's specification of the Board's
composition means the City may not change it, then increasing
the Board's membership to eight was self-evidently beyond the
City's authority. If that is not so, then why may the City add
one member to the Board, but it cannot add three? Either the
concurrence is wrong, or the eighth seat must be removed as well
as the three added by the 2013 Amendment. The concurrence
cannot have it both ways.
¶127 Finally, there is the third proposition——the concern
that we must define the full reach and scope of the "other
rights" provision. With respect to this clause, the concurrence
said that "when the legislature does not define a term, it is up
to the judiciary to identify and declare its meaning, something
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neither dissent attempts." Id., ¶1. The concurrence fears
that, unless we find something to put in the "other rights"
category, it might remain forever empty, a provision with no
work to do. Our job in this case was not to delve the 1937 Law
and the 1947 Law to discover all of the other rights they might
confer on the ERS members (if any). The MPA and the MPFFA came
to us claiming they had a right to a board of a certain size,
and a franchise of a particular composition. Our job was simply
to look into the 1937 Law and the 1947 Law to see if those
rights were there. If we don't find them, our commission is at
an end.
¶128 That doesn't mean the "other rights" provision has no
meaning. There might be any number of rights in the 1937 Law or
the 1947 Law that this provision protects. But we don't need to
know that to resolve this case. We just need to know whether
the petitioners' claimed rights exist in those acts. Anything
more is a pointless advisory opinion.
¶129 Ultimately, the concurrence is just a petitio
principii error, in which it assumed its conclusion as part of
its argument. It expressed the error most succinctly when it
said that "[w]hile the state legislature precluded the City from
changing the composition of the Board, the legislature itself
retains this power." Id., ¶7. The first part of the sentence
contains the hidden assumption that the "other rights" clause
can turn a legislative specification into a right. Because that
assumption is the sole motive force for the concurrence's entire
argument, the rationale rises or falls with its vitality. But
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the "other rights" clause cannot accomplish what the concurrence
assumes it can. It is not a source of rights, it only protects
rights that already exist elsewhere. For it to have any
operative effect, therefore, the concurrence must identify an
already-existing right that the "other rights" clause can then
protect.
¶130 The concurrence did not identify a right to a specific
Board size, or a right to at-large elections; all it identified
were legislative specifications. Consequently, it identified
nothing for the "other rights" clause to protect. In fact, it
admitted the rights claimed by the MPA and MPFFA do not exist
(apart from the "other rights" clause) when it acknowledged the
legislature can change the Board's composition without impacting
any of the ERS members' rights. See id. So if the legislature
can change the Board without violating a right, why can the City
not do the same? Because of the "other rights" provision, the
concurrence says. And that completes the petitio principii
error. If the members have no right to a specific Board
composition as against the legislature, but they do have such a
right as against the City, it can only be because the "other
rights" clause created a right out of something that was not
otherwise a right. How does the clause accomplish such a feat?
The concurrence did not say because it simply assumed it could,
and it baked that assumption into its conclusion. Classic. We
should avoid such illogic.
*
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¶131 Perhaps there is some gnosis to which I have not been
initiated that can explain what the court has done here, but I
don't see it. I respectfully dissent.
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