COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 25, 1997
Court No. 96-1659
The text of this decision has been drawn from unofficial text
published by the Court of Appeals
BURNETT COUNTY and JAMES H. TAYLOR, Plaintiffs-Respondents,
AFSCME LOCAL 279-A, Defendant-Appellant.
APPEAL from a judgment of the circuit court for Burnett County:
JAMES R. ERICKSON, Judge. Affirmed.
Before Cane, P.J., Myse, and Carlson, JJ.
PER CURIAM. AFSCME Local 279-A appeals a summary judgment entered
in favor of James Taylor, circuit judge, and Burnett County
(collectively, "the County"). The union argues that (1) a circuit
judge can be a municipal employer under 111.70(1)(j), STATS.; (2)
a circuit judge is subject to § 111.70; (3) the trial court acted
without jurisdiction to determine whether the Burnett County
register in probate, a municipal employee, had properly been
removed from the bargaining unit by Judge Taylor; and (4) a circuit
judge can act in both a judicial capacity and as an agent of the
AFSCME also argues that the trial court did not address a single
argument it made and erroneously concluded that its defense was
frivolous. For the reasons that follow, we reject these arguments
and affirm the judgment.
Burnett County Circuit Judge James Taylor issued an order that
appointed the register in probate and removed that position from
the courthouse worker's collective bargaining unit, AFSCME Local
279-A. AFSCME filed a prohibited practice complaint claiming that
the County and Judge Taylor had independently and in concert
violated § 111.70, STATS.
The County responded with this declaratory judgment action. Its
complaint seeks an injunction prohibiting the union from filing a
prohibited practice complaint against circuit judges based upon
claims that the judge is a County agent and municipal employer
subject to the authority of WERC under § 111.70(3). (1) The
complaint also seeks a legal determination that the County acted in
compliance with a lawful directive of Judge Taylor.
AFSCME's answer denies the County's "legal conclusions ... that
Taylor is neither an agent of Burnett County, nor a municipal
employer." It denies that the "unilateral removal of the Register
in Probate from the collective bargaining unit in question was a
lawful exercise of authority by Judge Taylor." AFSCME's answer also
the Wisconsin Employment Relations Commission has the primary
jurisdiction to hear and decide the prohibited practices complaint
... and that persons who are elected as circuit court judges are
'persons' within the meaning of Sec. 111.70(l)(k) and Sec.
111.70(3)(c), Wis. Stats., and are not above the law, and denies
that Judge Taylor is entitled to injunctive relief.
AFSCME filed a motion to dismiss the complaint for failure to state
a claim. (2) The County in turn moved for
summary judgment that
circuit judges do not act as agents of the County, are not
municipal employers and are not subject to enforcement powers of
WERC under § 111.70, STATS. It also sought a declaration that the
County acted in compliance with a lawful directive and order from
Judge Taylor and an order that the parties conduct any pending
actions before WERC in a manner consistent with the declaratory
judgment sought. It further requested costs, disbursements and
reasonable attorney fees. It filed signed affidavits of Judge
Taylor and Myron Schuster, the personnel director of Burnett
County, to support the allegations of the complaint. AFSCME
submitted a "reply brief" opposing the motion for summary judgment.
In a written decision, the court concluded the issues are:
(1) Is a duly elected Circuit Judge legally entitled to
appoint a Register in Probate and a Probate Registrar despite
provisions of a collective bargaining agreement with the county?
(2) Is the Burnett County Register in Probate a managerial
employee and therefore an exception to the definition of municipal
employe defined at Section 111.70(l)(i), Wis. Stats.?
The court answered the questions in the affirmative and granted the
County's motion for summary judgment. The trial court did not hold
an evidentiary hearing and concluded that the issues were governed
by § 851.71(l), STATS., and case law, including Manitowoc County v.
Local 986A, AFSCME, 170 Wis.2d 692, 489 N.W.2d 722 (Ct. App. 1992).
It granted the County relief sought in the complaint.
1. STANDARD OF REVIEW
An appeal of a summary judgment raises an issue of law we review de
novo by applying the same standards set forth in § 802.08(2),
STATS., employed by the trial court. Brownelli v. McCaughtry, 182
Wis.2d 367, 372, 514 N.W.2d 48, 49 (Ct. App. 1994). We first
examine the complaint to determine whether it states a claim and
then the answer to determine whether it presents a material issue
of fact. Id. If they do, we then examine the moving party's
affidavits and other supporting documents to determine whether that
party has established a prima facie case for summary judgment. Id.
If it has, we then review the opposing party's affidavits and other
supporting documents to determine whether there are any material
facts in dispute that would entitle the opposing party to a trial.
Id. at 372-73, 514 N.W.2d at 49-50. A party may not rest on mere
allegations in the pleadings to establish a genuine issue of
material fact. Section 802.08(2), STATS. Based upon our review of
the record, we conclude that AFSCME has not demonstrated any
genuine issue of material fact that requires a trial.
2. WHETHER JUDGE TAYLOR ACTED AS A MUNICIPAL EMPLOYER
AFSCME argues that a circuit judge can be a "municipal employer"
within the meaning of § 111.70(1)(j), STATS. The application of a
statute to a particular set of facts presents a question of law.
Bucyrus-Elie Co. v. DILHR, 90 Wis.2d 408, 417, 280 N.W.2d 142, 146-47
(1979). A "municipal employer" means "any person acting on
behalf of a municipal employer within the scope of the person's
authority, express or implied." Section 111.70(1)(j), STATS.
AFSCME contends that a county board of supervisors has been given
power to establish a county employee's conditions of employment.
In addition to § 111.70(1)(j), STATS., AFSCME relies on four
authorities: Richards v. Board of Education, 58 Wis.2d 444, 460,
206 N.W.2d 597, 605 (1973); 63 Op. ATT'Y GEN. 150-51 (1974); §§
59.15(2)(c) and (4); and § 59.07(20), STATS. 1993-94. (3) AFSCME
argues that a probate registrar is a county employee and, to the
extent that a circuit judge acts with respect to that employee, the
judge is a municipal employer. It also argues that the county
board of supervisors' authority with respect to conditions of
employment "preempts any other statutory delegation of authority
relating to the same employee." We are unpersuaded.
In Iowa County v. Iowa County Courthouse, 166 Wis.2d 614, 619-20,
480 N.W.2d, 499, 501 (1992), our supreme court held:
a circuit court judge is not a "municipal employer...
A circuit court judge is the local presence of the state. The
judge is not a county employee or an agent of the county. See
State ex rel. Gubbons v. Anson, 132 Wis. 461, 464, 112 N.W. 475
(1907). In other words, a circuit court judge is not within the
statutory definition of a "municipal employer" and as such is not
a party to and cannot be bound by the provisions of a collective
bargaining agreement entered into by Iowa County and Local 413
which purport to regulate the appointment -of a register in
We are bound by supreme court decisions. See State v. Lossman, 118
Wis.2d 526, 533, 348 N.W.2d 159, 163 (1984). We conclude that
Judge Taylor did not act as a municipal employer when appointing
the register in probate.
Also, in Manitowoc County, 170 Wis.2d at 693, 489 N.W.2d at 722,
concluded that a circuit judge had the statutory authority to enter
an order that appointed a register in probate, assigned certain
duties and powers to that position, and decreed that the register
in probate is not a municipal employee under § 111.70(1)(j), STATS.
We concluded that the order was a valid exercise of the court's
statutory powers under § 851.71(1), STATS., because "the authority
conferred by this statute prevailed over any contrary provisions of
a collective bargaining unit." Id. at 699, 489 N.W.2d at 725. (4)
This court is bound by the precedential effect of its own opinions.
In re Court of Appeals, 82 Wis.2d 369, 371, 263 N.W.2d 149, 149-50
In all material respects, Judge Taylor's order is indistinguishable
from the order at issue in Manitowoc County. We conclude that
Judge Taylor's lawful exercise of statutory authority under §
851.71(1), STATS., did not transform him into a municipal employer.
Under Manitowoc County, the legislature's specific grant of
authority to the circuit court to appoint the probate register
overrides the more general provisions of ch. 59, STATS.
In its reply brief, AFSCME argues that Iowa County and
County can be distinguished. (5)
AFSCME argues that the cases can be
distinguished because here "the undisputed motive that prompted
[Judge Taylor's order] is a desire to remove a municipal employee
from a bargaining unit..." This distinction is unpersuasive.
Manitowoc County and § 851.71(1), STATS., are silent with respect
to motive; AFSCME cites no authority that motive converts a circuit
judge into a municipal employer under § 111.70, STATS. Consistent
with Manitowoc County and Iowa County, we conclude that
legislature, under § 851.71, STATS., has specifically authorized
the circuit judge authority to appoint the probate registrar and
assign her duties and, in doing so, the judge does not become a
3. WHETHER JUDGE TAYLOR IS SUBJECT TO § 111.70, STATS., WHEN
APPOINTS A PROBATE REGISTRAR
Next, AFSCME argues that a circuit judge, when acting outside his
judicial capacity, is subject to the same laws that apply to all
other persons, including § 111.70, STATS. It cites a series of
cases that hold judges accountable when they violate civil rights
of employees, for example. (6) It argues that
there is no dispute
that Judge Taylor had the statutory authority to assign the duties
to the probate registrar, but "[t]he question here was whether he
had exercised that authority with an improper motive or in order to
accomplish an unlawful purpose." We disagree. We conclude that
under Manitowoc, a circuit judge may appoint a probate registrar,
assign duties and decree that the position is not one of a
municipal employee even if the motive is to remove the position
from the bargaining unit.
AFSCME apparently argues that its prohibited practices complaint
filed with WERC alleging unlawful actions undertaken for the
improper removal of a municipal employee from the bargaining unit
is proof of unlawful action. This argument misses the mark. In
summary judgment procedure, a party may not rest on mere
allegations, but must present affidavits "made on personal
knowledge and shall set forth such evidentiary facts as would be
admissible in evidence." Section 802.08(3), STATS. Specific facts
must be set forth showing a genuine issue for trial. Id. AFSCME has
not demonstrated proof of unlawful actions on the part of Judge
Next, AFSCME contends that WERC is the appropriate forum to
determine the fact question whether the judge violated § 111.70,
STATS. Because AFSCME has demonstrated no genuine issue of
material fact, we reject this argument.
4. WHETHER THE TRIAL COURT ACTED WITH JURISDICTION
Next, AFSCME argues that the trial court did not act with
jurisdiction to determine whether the register in probate is a
municipal employee as defined in § 111.70(1)(i), STATS. It argues
that this determination is for WERC, pursuant to § 111.70(4)(d)2.
It further argues that Judge Taylor's order denied the union due
process, because it did not provide it an opportunity to be heard.
We are unpersuaded.
Judge Taylor's order was not the result of a decision making
process by a court as a fact finder. Upon Judge Taylor's
assignment of duties and decree that the position of probate
registrar was not one of a municipal employee, no factual findings
were to be made.
Also, within its jurisdiction argument, AFSCME argues that it was
error for the trial court to make its summary judgment
determination absent an evidentiary hearing. We disagree. In
summary judgment procedure, to be entitled to an evidentiary
hearing, the opposing party must demonstrate a genuine issue of
material fact. Section 802.08, STATS. Because here the underlying
facts are not disputed, no evidentiary hearing was necessary and
summary judgment procedure was appropriate. (8)
5. WHETHER A CIRCUIT JUDGE MAY SERVE IN OTHER THAN A JUDICIAL
Next, we examine AFSCME's claim that a circuit judge, in addition
to serving in a judicial capacity, can also serve as an agent of or
otherwise on behalf of, or in the interest of the county in which
he is elected. AFSCME argues that whether the act done by him was
judicial is to be determined by its character, and not the
character of the agent. It contends that a judge performs a
variety of executive and administrative functions. Cf. In re
Kamps, 118, Wis. 2d 482, 484, 347 N.W.2d 911, 912 (Ct. App. 1984)
(the power to remove an officer is an executive function by a
judge, not a judicial function); Grob v. Nelson, 8 Wis.2d 8, 12-13,
98 N.W.2d 457, 459 (1959) ("We held that removal of an officer by
a judge was an executive, not a judicial function."); see also
Kurowski v. Krajewski, 848 F.2d 767, 773 (7th Cir. 1988) ("judges
act in an 'administrative capacity' when hiring and firing staff-even staff intimately connected
with the judicial office...").
We agree with the general proposition that in certain
circumstances, a judge may perform in a capacity other than a
judicial capacity. This general proposition does not appear to be
in dispute. Nonetheless, this argument also misses the mark. A
judge who performs a variety of functions does not necessarily
become an agent for the county.
AFSCME also contends that the question whether a judge has acted in
some other capacity present questions of fact. If historical facts
are not disputed, only a question of law remains. Manitowoc
County, 170 Wis.2d at 698, 489 N.W.2d at 724. Here, the underlying
facts as set forth in the affidavits of Judge Taylor and Myron
Schuster have not been met with opposing affidavits or other proof
of evidentiary facts. As a result, no issue of fact is joined.
5. WHETHER AFSCME'S DEFENSE WAS FRIVOLOUS
Finally, AFSCME argues that the trial court erroneously determined
that it raised a frivolous defense under § 814.025, STATS. We
disagree. A frivolous argument is one that is asserted
notwithstanding that a reasonably informed and capable litigant
would have known it was without a reasonable basis in law or
equity, and unsupported by any reasonable contention for the
extension or modification of existing law. Associates Finan.
Servs. v. Homik, 114 Wis.2d 163, 174-75, 336 N.W.2d 395, 401 (Ct.
App. 1983). This is an objective standard. Hessenius v. Schmidt,
102 Wis.2d 697, 701, 307 N.W.2d 232, 235 (1981).
AFSCME argues that the trial court did not address any of the
arguments addressed by AFSCME. We disagree. The trial court
addressed the issues in a four-page decision, in which it stated:
"This case is clearly governed by well established statutory law as
well as Wisconsin case law" and "Section 851.71(l), Wis. Stats.,
makes the issue very clear." Citing Iowa County, Manitowoc County,
Eau Claire County v. WERC, 122 Wis.2d 363, 362 N.W.2d 429 (Ct.
App. 1984), and Kewaunee County v. WERC, 141 Wis.2d 347, 415
839 (Ct. App. 1987), it stated that " [t]he issue is no longer in
question." These cases were cited by Judge Taylor in his order
reappointing the probate registrar, as well as the trial court in
its written decision.
The court further concluded:
Defendants have known for years the status of the law in the
State of Wisconsin on the subject of Registers in Probate. The
statute is clear and case law is clear, and has been clear for
years. The appearance of frivolous litigation by the defense is
AFSCME contends that the trial court "did not address any of the
arguments advanced by AFSCME Local 279-A, not a single one of them,
let alone how it was that they may have fallen short of the mark!"
(Emphasis in the original.)
The record does not support this argument. The characterization of
the issues presents a question of law. The trial court, like an
appellate court, is not required to accept the parties'
characterization of the issues. Cf. State v. Waste Management, 81
Wis.2d 555, 564, 261 N.W.2d 147, 151 (1978) ("An appellate court is
not a performing bear, required to dance to each and every tune
played on an appeal.").
The issues are framed by the pleadings. Hansher v. Kaishian, 79
Wis.2d 374, 385, 255 N.W.2d 564, 570 (1977). The rules of civil
procedure reject the approach that pleading is a game of skill
where one misstep may be decisive to the outcome. Canadian Pacific
Ltd. v. Omark-Prentice Hydraulics, 86 Wis.2d 369, 373, 272 N.W.2d
407, 409 (Ct. App. 1978). Nonetheless, summary judgment
methodology does not allow enlargement of issues beyond those
framed by the pleadings. C.L. v. Olson, 140 Wis.2d 224, 239, 409
N.W.2d 156, 162 (Ct. App. 1987). However, the parties have the
right to amend their pleadings so that the issues may be properly
framed. Section 802.09, STATS. The court may decide the case on
the narrowest ground and need not address nondispositive issues.
We address only the dispositive issue. See Waste Management, 81
Wis.2d at 564, 261 N.W.2d at 151.
We note that a significant portion of AFSCME's arguments is devoted
to characterizing the issues and subissues. (9)
For example, in its
reply brief, AFSCME argues: "The issue presented here is whether
circuit judges always enjoy immunity in employment relations
cases." Because the pleadings in this case do not identify judicial
immunity as an issue and the trial court did not base its ruling on
judicial immunity, AFSCME's argument is wrong.
The parties may safely assume that any subissue not directly
addressed in this opinion has been deemed to lack sufficient merit
to warrant individual attention. Id. at 564, 261 N.W.2d at 151.
We conclude that the trial court's decision adequately covered the
issues raised by the record in this matter. We agree with its
determination that AFSCME's defense is frivolous for the reasons
stated by the trial court.
By the Court.-Judgment affirmed.
This opinion will not be published. RULE 809.23(l)(b)5, STATS.
1. The record suggests that the injunctive relief is no
issue because WERC found no prohibited practice and dismissed
AFSCME's prohibited practice complaint.
2. AFSCME's brief, in support of its motion,
(1) Can a person who is elected to serve as a circuit judge
serve as an agent of the county in which he is elected?
(2) Can a circuit judge be a "municipal employer" within the
meaning of Sec. 111.70(1)0), Wis. Stat.?
(3) Is a person who is elected to serve as a circuit judge
subject to the laws that apply to other persons and, in particular,
the provisions of Sec. 111.70, Wis. Stat.?
3. Section 59.15, STATS. 1993-94, was renumbered
§ 59.22 and
amended by 1995 Wis. Act 201 §§ 257 to 260, eff. Sept. 1, 1996.
4. Section 851.71(i) STATS., provides: "In each
judges of the county shall appoint and may remove a register in
5. Although these two cases were specifically cited
Taylor's order and in the trial court's written decision, AFSCME
first attempts to distinguish them in its reply brief.
6. Forrester v. White, 484 U.S. 219
(1988); McMillan v.
Svetanoff, 793 F.2d 149, 154 (7th Cir. 1986); Harris v. Harvey,
F.2d 330, 336-37 (7th Cir. 1979).
7. AFSCME also argues that no express agreement
is necessary to
constitute a conspiracy. However, in its reply brief, AFSCME
apparently retreats from its conspiracy allegations, stating:
"acknowledging that 'no conspiracy claim was ever made by the
defendant at the trial court level,' Burnett County and James
Taylor nonetheless argue at length the merit of the non-existent
claim...... We conclude that any implied conspiracy claim is not
sufficiently developed to be addressed on appeal.
Also, AFSCME's argument implies that Judge Taylor entered into an
agreement with Burnett County to remove the probate registrar from
the bargaining unit. However, Judge Taylor's affidavit states that
his order was "solely on the circuit court's initiative and
pursuant to its authority and existing case precedent." He also
stated that before he issued the order, he had no contact with any
official of Burnett County relative to the order. AFSCME offers no
proofs rebutting this affidavit. As a result, AFSCME fails to
raise a genuine issue of material fact.
8. Within its challenge to trial court jurisdiction,
argues that Judge Taylor's order violated constitutional rights to
due process because AFSCME was not given notice or opportunity to
be heard before he signed the order. Because AFSCME does not
provide any record citation for this argument, and does not develop
this argument, we do not address it on appeal.
9. See note 7, where we concluded that AFSCME
abandoned its conspiracy claim.