STATE OF WISCONSIN
Milwaukee Board of School Directors,
Wisconsin Employment Relations Commission,
Case No. 89 CV 005 - 185
Decision No. 24748-A
This proceeding began when the Milwaukee Board of School Directors (Board) filed a
under Chapter 227, Wis. Stats., for the court to review the decision of the Wisconsin
Employment Relations Commission (WERC). In a declaratory ruling, WERC determined
a contractual lay-off provision between the Board and the Milwaukee Teachers' Education
Association (MTEA) was unconstitutional. The Clause in question provided that lay-offs
be based on inverse seniority "provided that the racial balance of
the schools is not disturbed."
WERC and MTEA contend that WERC properly found the contractual provision was
unconstitutional under the Fourteenth Amendment and the United States Supreme Court
in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). The Board,
that WERC erred in making its ruling since the issue was not ripe for determination and
WERC violated the separation of powers doctrine in making a judicial decision on the
constitutionality of the contract clause. In deciding whether WERC acted properly, this court
must inquire into the two issues presented by the Board.
In State ex. rel. Lynch V. Conta, 71 Wis.2d 662, 669, 239 N.W.2d 313
(1976), the Wisconsin
Supreme Court set forth four requirements that must be met in order to issue a declaratory
judgment. The first requirement states, "There must exist a justiciable controversy, that is to
a controversy in which a claim of right is asserted against one who has an interest in
it." And the fourth requirement states, "the issue involved in their controversy must be ripe
determination." As a result, the court must determine whether WERC's declaratory ruling on
constitutionality of the lay-off provision was ripe for determination, since declaratory
is unavailable unless the issue is ripe for determination. City of Janesville v. Rock
Wis.2d 187, 202, 319 N.W.2d 891 (1982).
In adopting the U.S. Supreme Court' s decision on ripeness made in Abbott
Gardner, 387 U.S. 136, 87 S.Ct. 1507 (1967), the Wisconsin Supreme Court stated:
rationale of the ripeness doctrine is to prevent courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements ... Lister v. Board
72 Wis.2d 282, 309, 420 N.W.2d 610 (1976). The Abbott decision indicated
that ripeness turns
on the fitness of the issues and the hardship to the parties if the court withholds a
Abbott, at 149. A further requirement of ripeness is an actual injury. "A
substantial number of
ripeness cases ask whether the plaintiff has suffered harm or threat of harm that is 'direct and
immediate' rather than conjectural, hypothetical, or remote." Nichol, Ripeness and the
Constitution, 54 U. Chi. L. Rev. 153, 170 (1987).
In the case at hand, there were no pending plans for a lay-off in either the near or the
future. In fact, there has not been a teacher lay-off in the 140 year history of the Milwaukee
Public Schools. However, WERC and MTEA argue that the issue was ripe under sec.
111.70(4)(b), Stats., which states: "Whenever a dispute arises between a municipal employer
a union of its employees concerning the duty to bargain on any subject, the dispute shall be
resolved by the commission on petition for a declaratory ruling."
It is not sufficient to simply cite the statute the confers the authority upon WERC to
declaratory ruling on any subject. This in itself does not mean that the issue was ripe for
determination. WERC's authority under sec. 111.70(4)(b), Stats., is only conferred when
issue is ripe. City of Janesville, at 202. As stated earlier, the standard for
fitness of issues, hardship to the parties, and actual injury.
First, the determination of the constitutionality of the layoff provision should not be
by an administrative body. Such issues are solely within the province of the judiciary.
v. Madison, 5 U.S. (1 Cranch) 137, 2 L.ED. 60 (1803). As a result, the fitness
goes to the Board's separation of powers argument which will be discussed below.
WERC does not have the jurisdiction to decide upon the issue, it certainly would not meet
fitness requirement. Second, there has been no hardship to the parties. Since there has been
lay-off and there are no plans for one in the future, neither the Board nor MTEA have been
affected by the provision. This leads to the third requirement, actual injury. While it is not
necessary for a lay-off to have occurred, someone must be actually affected by the provision.
Since the provision has never been implemented, it cannot be said exactly how it will
provision simply states that the racial balance of the teachers at the schools must not be
It does not state that white teachers must be laid off before black teachers. Such a provision
would actually affect the job security of the white teachers and an actual injury would result.
However, without an actual or pending lay-off, it would be pure conjecture to say who
injured by the provision.
It is the composition of the faculty that determines how the provision works. Today,
be more white teachers than minority teachers. However, this may not always be the case.
ratio of white to minority teachers is not static. The make-up of the faculty at the point in
of a lay-off establishes which parties would be affected under the provision. As a result,
been no actual injury to anyone without a lay-off or threat of lay-off. The second issue
by the Board is whether WERC violated the separation of powers doctrine in making a
upon the constitutionality of the contract clause. WERC contends that the issue falls within
jurisdiction since it is primarily a matter of collective bargaining. Pursuant to that power,
states that it simply applied the Wygant decision.
It is true that WERC has been given wide latitude in deciding matters regarding
bargaining. WERC v. Evansville, 69 Wis.2d 140, 158 N.W.2d 688 (1975).
However, the matter
in the case at hand is not within WERC's collective bargaining powers. Section
Stats., defines collective bargaining as "the performance of mutual obligation ... to meet and
confer at reasonable times, in good faith, with respect to wages, hours and conditions of
employment . . . . In their briefs, WERC and MTEA do not address the lay-off clause as
matter. Instead, they simply state the precedent cases that recognize WERC's expertise in
of collective bargaining. They do not attempt to show how the lay-off provision affects
hours, or working conditions. Instead, their main argument in regard to the provision treats
matter as a constitutional matter.
Also, it was not simply a matter of applying the Wygant decision. In order to apply
WERC had to form an interpretation. Since Wygant is not clear on its face, it
cannot be simply
applied as WERC asserts. This is evidenced by the fact that both the petitioner and the
each submitted briefs with very different interpretations of the Wygant decision. As a result,
is clear that different interpretations can be made. And, it cannot be applied to the case at
without some branch of government interpreting the case. Therefore, it is not simply an
collective bargaining. The real issue is whether an administrative agency has the authority to
interpret a U. S. Supreme court decision without violating the separation of powers doctrine.
In Glendale Prof. Policeman's Assoc. v. Glendale, 83 Wis.2d 90, 100,
264 N.W. 594 (1978),
the Wisconsin Supreme Court looked at WERC's ability to decide upon the relationship
two Wisconsin statutes. The court stated that this issue was "within the special competence
courts rather than the Commission (WERC), and therefore this court need not give great
to the arbitrator's determination of the issue." Id. at 101. The court also stated the WERC is
"primarily charged with administering secs. 111.70-77, Wis. Stats." Id. at 100.
In a similar
situation in City of Brookfield v. WERC, 87 Wis.2d 819, 827, 275 N.W.2d 723
(1978), the court
stated, "WERC should not be accorded the authority to interpret the appropriate statutory
construction .... " It can be inferred from these two cases that if WERC does not have the
authority to interpret statutory construction beyond its expertise in administering secs.
Stats., it cannot interpret U.S. Supreme Court decisions and the U.S. Constitution either.
WERC simply lacks the power to make determinations on constitutional issues.
boards and commissions have no common law power. Their powers are limited by the
conferring such powers expressly or by fair implication." Nekoosa Edwards v. Public
Comm., 8 Wis.2d 582, 593, 99 N.W.2d 821 (1959). WERC has not either expressly
been granted the authority to decide upon constitutional issues. In fact, our system of
has not delegated the authority to administrative agencies to decide upon matters of
importance... Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400 (1959).
In one of WERC's own decisions, WERC recognized its inability to issue a declaratory
ruling-upon the constitutionality of barring supervisors from joining unions. It stated, "There
forums available which are better suited to determine such constitutional questions." In
of the Joint Petition of City of Cudahy and International Association of Firefighters,
Local 1801, WERC Dec. No. 9381.
Furthermore, A Florida court found that separation of powers "stands as a permanent
administrative determination of fourteenth amendment problems." Carrollwood State
Lewis, 362 So.2d 110, 114 (Fla. Dist. Ct. App. 1978). The court went on to say
constitutional issues cannot be delegated to administrative bodies for determination. Id.
Florida and Wisconsin Constitutions are not identical, they both divide governmental powers
three branches: executive, legislative and judicial. As a result, it is reasonable to conclude
separation of powers in Wisconsin would work in a similar manner in light of the argument
In conclusion, the court holds the WERC did not act within its powers in issuing this
ruling. The issue was not ripe for determination, and it was not within WERC's authority to
interpret matters of constitutional importance. Accordingly, WERC's decision is vacated and
reversed, in its entirety, pursuant to sec. 227.57, Stats. Counsel for the petitioner,
Board of School Directors, shall draw the appropriate order and submit it under the five day
Dated this ______ day of September, 1990 at Milwaukee, Wisconsin.
BY THE COURT:
Honorable William J. Shaughnessy
Circuit Court Judge