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STATE OF WISCONSIN CIRCUIT COURT BRANCH 9 DANE COUNTY

LOCAL 441A, WISCONSIN PROFESSIONAL POLICE ASSOCIATION LAW ENFORCEMENT EMPLOYEE RELATIONS DIVISION,

Petitioner,

vs.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION and DOUGLAS COUNTY,

Respondents.

Case No. 2012CV1747

Decision No. 33853C1

DECISION AND ORDER ON JUDICIAL REVIEW

STATEMENT OF THE CASE

Local 441A, Wisconsin Professional Police Association/Law Enforcement Employee Relations Division (the "Union") petitions this court pursuant to s.227.52, Stats., for judicial review of a written decision by the Wisconsin Employment Relations Commmission (the "Commission") declaring that jailers in Douglas County (the "County") are not "public safety employees" within the meaning of s.111.70 (1) (mm), Stats., because they are not "deputy sheriffs" under 40.22 (48) (am) 13 and (b) 3, Stats. The Commission and the County are the respondents in this action.

The certified administrative record has been filed with the court, and all parties have submitted briefs on the issues. Since no party has requested oral argument, this judicial review is ripe for decision.

For the following reasons, the Commission's declaratory ruling is REVERSED on a finding that, as a matter of law, the jailers at issue are "deputy sheriffs" withinj the meaning of 40.02 (48) (am) and (b) 3, Stats.

STANDARD OF REVIEW

There are no material factual issues in dispute. Indeed, the parties agree that the Douglas County jailers satisfy all prerequisites for classification as "public safety empluyees" under 111.70 (1) (mm) except wheter or not they are properly designated "deputy sheriffs" within the meaning of 40.02 (48) (am) a3 and (b) 3, Stats. Thus a purely legal issue of statutory constructiom is presented for this court to decide.

Although statutory interpretation is ordinarily a question of law determined independently by a court, this court could accord the Commission's lrgal interpretation great weight deference or due weught deference. See e.g. Racine Harley-Davidson, Inc. v. State Division of Hearings and Appeals, 292 Wis 2d 549, 559 et seq, (2006). Footnote 5 of Racine Harley-Davidson is particularly instructive on the general principals:

Kemp v. DHFS, 2004 WI 16 12, 269 Wis.2d 59, 675 N.W.2d 755 ("This issue involves statutory interpretation, which is a question of law that this court reviews de novo. Thus, we are not bound by an administrative agency's determination. Nevertheless, we have generally used one of these standards of review, with varying degrees of deference, to review an agency's conclusions of laaw or statutory interepretation." (citations omitted)): Brown v. LIRC. 2003 WI 142 11-13, 267 Wis.2d 31,671 N.W.2d 279 ("The interpretation of a statue presents a question of law. The application of statutory standard to a fact situation is ordinarily a queswtion of law for the courts.... Nevertheless, labeling an issue as a question of law does not mean that a court may disregard an agency's determination.... The appropriate level of scrutiny a court should use in reviewing an agency's decision on questions of law depends on the comparative institutionals capabilities and qualificaqtions of the court and the agency to make a legal determination on a particulare issue"); Dodgeland Educ. Ass'n v. WERC, 2002WI22, 22, 250 Wis.2d 357, 639 N.W.2d 363 (199) ("whether WERC properly interpreted Wis. Stat. 111.70 is a question of laaw and we are not bound by WERC's interpretation. In certaincircumstances, howere, courts should defer to an administrative agency's interpretation of a statue. (citations omitted)); Ide. v. LIRC.224 WI.2d 159, 166.N.W.2d 363 (1999) ("Whether the facts, as found by LIRC, fulfill a particular legal standard is a question of law which we review de novo.... When reviewing questions of law, we apply one of three levels of deference to the agency's interpretation...."); La Crosse Queen, Inc. v.DOR, 208 Wis.2d 439, 445-46, 561 N.W.2d 686 (1997) (court "reviews [s] questions of law de novo" and "may substitute [its] judgment for that of the [Tax Appeals} Commissions" but will accord defference when agency possesses particular expertise in an area of law); UFE, Inc. v. LIRC 201 Wis 2d 274. 294, 548 N.W. 2d 57 1996 ("Although we are not bound by LIRC'S interpretation, we do defer to agency interpretation in certain situations."); Harnishfiger Corp. v. LIRC 196 Wis 2d 650 659, 539 N.W. 2d98 (1995) ("The guiding principle is that statutory interpretation is a question of law which courts decide de novo, Furthermore, a court is not bound by an agency's interpretation of a statute. as important, however, is the principle that courts should defer to an administative agency's interpretation of a statute in certain situations." (citations omitted)); State ex rel, Parker v. Sullivan, 184 Wis2d 668 699, 517 N.W.2d 449 (1994) ("The interpretation of a statute presents a question of law, and the 'blackletter" rule is that a court is not bound by an agency's interpretation. Nevertheless, courts frequently refrain from substituting their interpretation of a statute for that of the agency charged with the administration of a law..... [C]ourts frequently give deference to the interpretation of statutes by administrative agencies charged with their enforcement.") Marris v. City of Cedarburg, 176 Wis.2d 14, 32, 498N.W.2d 842 (1993)(same); Richland School District v. DILHR 174 Wis 2d 878, 890-91, 498 N.W.2d 826 (1993)(same); Lisney v. LIRC, 171 Wis2d 499, 505, 493 N.W.2d 14 (1992)(same) West Bend Educ. Ass'n v. WERC , 121 Wis2d 1, 11-12, 357 N.W.2d 534 (1984) ("Generally quesrions relating to interpretation and application of statutes are labeled questions of law, and the blackletter rule is that a court is not bound by an agency's conclusions of law. Courts, however, frequently refrain from exercising the power to substitute their interpretation or application of a statute for that of an agency charged with the administration of the law.")

Both the County and the Union argue that the standard of review this court should apply is de novoi.e. owing no deference to the Commission's legal interpretation. The Commission essentially punts, contending that under any of the three standards of review, its decision is correct and must be affirmed.

Because this judicial review, at its heart, involves an agency's interpretation of statutes which are not commended to its expertise and regulation by our legislature (particularly the interplay, if any, between chapter 59 relating to county sheriffs and chapter 40, which is the bailiwick of the Department of Employee Trust Funds), the Commission's declaratory ruling in this case is eentitled to no persuasive weight. Rather, review is de novo, without deference to the Commission. See e.g. County of LaCrosse v. WERC, 180 Wis.2d 100,107 (1993). rookfield I"); Glendale Pprofessional Policemen's Assn. v. City of Glendale, 83 Wis.2d 90, 100-01, 264 N.W.2d 594 (1978). Such legal questions fall within the special competence of cxourts, Glendale 83 Wis.2d at 100-01, 264 N.W.2d 594.

Before proceeding with our analysis, we note that normally, WERC's rulings with respect to the bargaining nature of proposals are entitled to "great weight" West Bend 121 Wis.2d at 12, 357 N.W.d 534. That deference is predicted on the commission's perceived expertise in collective bargaining matters. Id. at 12, 357 N.W.2d534. Yet, courts of this state have held that such deference is unwarranted when the proposal in question required harmonization of the Municipal Employment Relations Act (MERA) (secs 111.70-111.77, Stats.) with other state statutes. See, City of Brookfield v. WERC, wis.2d 819, 826-27, 275 N.W.d2 723 (1979) ("Brookfield I"); Glendale Professional Policemen's Ass'n v. City of Glendale, 83 Wis2d 90, 100-01, 264 N.W.2d 594 (1978). Such legal questions fall within the special competence of courts. Glendale 83 Wis.2d at 100-01, 264 N.W.2d 494.

ANALYSIS AND DECISION

The parties correctly agree that, to qualify as "public safety employees" within the meaning of 111.70 (1)(mm) Stats., the Douglas County jailers must satisfy the definition of "deputy sheriff" in 40.02(48)(b) 3, Stats.,:

In this chapter, unless the context requires otherwise:

3. A "deputy sheriff" or a "county traffic police officer" is any officer or employee of a sheriff's office or county traffic department, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist or mechanic and whose functions do not clearly fall within the scope of active law enforcement even though such an employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement. Deputy sheriff or county traffic police officer includes any person regularly employed and qualifying as a deputy sheriff or a county traffic police officer, even if temporarily assigned to other duties.

(All emphasis added).

It is undisputed, indeed stipulated, that the subject jailers are regularly employed by the Douglas County Sheriff's office in "active law enforcement". Accordingly, there is no dispute that, under the plain wording of the first sentence of the above definition, the Douglas County jailers are "deputy sheriffs". The Commission's erronous conclusion the contraty rests on the second sentence and particularly the word "qualifying". The Commission in a 2-1 aplit decision, concludes that the phrase "[d]eputy sheriff.... includes any person... qualified as a deputy sheriff... even if temporarily assigned to other duties" means that a deputy sheriff must be appointed by the sheriff and sworn on oath under statutes not referenced in the 40.02(48)(b)3. The Commission majority states:

In our view, the Sec. 40.02(48)(3), Stats., definition of deputy sheriff has two basic components: 1) being "qualified" to be a deputy sheriff, and 2) having principal duties that involve active law enforcement. As to the "qualified" component, the Court's decision in Mattila v. Employee Trust Fund Board, 2001 WI App 79, 243 Wis. 2d 90, 625 N.W.2d 33 provides significant guidance. The Court's decision indicates that being appointed as a "deputy" by a sheriff is a necessary qualification to be a "deputy sheriff" within the meaning of Sec. 40.02 (48)(am) 13 and (b) 3, Stats. Thus we find "qualified" to mean having been appointed as a "deputy sheriff" pursuant to Sec. 59.26 (2) Stats.

As indicated in Finding of Fact 3, none of the County jailers have been appointed as a "deputy sheriff". Because they have not been so appointed, they are not "qualified" to be and thus do not hold the position of "deputy sheriff"within the meaning of Secs. 40.02(48) (b) 3 and 40.02 (b) (am)48 (am) 13 Stats. Therefore, the jailers are not "public safety employees" within the meaning of Sec. 111.70 (1) (mm), Stats., but are instead "general municipal employees" within the meaning of Sec. 111.70(1) (fm), Stats.

Clearly the term "deputy sheriff" is largely self-defining. Under Sec. 59.26 (1), Stats., the sheriff, upon beginning his term of office is entitled to appoint deputy sheriffs. Those individuals taken oath of office and are authorized to perform the functions described in Sec. 59.27, Stats. They have the power to arrest and enjoy various statutorily conferred benefits. For example, under Sec. 59.26 (8) Stats., Deputy sheriffs had the benefit of significant limitation on the power to discipline or discharge then from their employment.

Sheriff's pursuant to Sec. 59.27 (1), Stats. are responsible to "take the charge and custody of the jail" and to "keep the persons in the jail personally or by a deputy or jailer." That responsibility may be exercised by deputy sheriffs, jailers, civilian correction officers or various combinations thereof. There is however a clear statutory distinction between "deputy sheriffs" and people who work in the office of the Sheriff were not deputy sheriffs. We believe the test is simple and reflects the clear intentions of the Legislature. If a county chooses to clasify an employee has a protective occupation participant in the sheriff choses (sic) to designate the employee has a "deputy", he or she is a "public safety employee" for purposes of Sec. 111.70. No tortuous legal analysis beyond the above de3signation is necessary.

The outcome in this judicial review is is controlled by the rules of statutory construction enunciated by our Supreme Court, per Justice Diane Sykes:

It is, of course, a solemn obligation of the judiciary to faithfully gove effect to the laws enacted by the legislature, and to do so requires a determination **124 of statutory meaning. Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means, so that it may be given its full, proper and intended effect.

[24] *663 45 Thus, we have repeatedly held that statutory interpretation "gebins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Seider,236 Wis3d, 612 N.W.2d 659; see also Setagord, 211 Wis2d at 406, 565 N.W.2d 506; Williams, 198 Wis2d at 525, 544 N.W.2d 406, Martin, 162 Wis2d at 893-94, 470 N.W.2d 900. Statutory language is given its commom, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning, Brown v. Milwaukee County, 2003 Wi 28 8, 20, 260 Wis2d 633, 660 N.W.2d 656; see also Wis Stat. 990.01(1).

46 Context is important yo meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isoloation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonbly, to avoid absurd or unreasonable results. State v. Delaney, 2003 WI9, 13, 259 Wis.2d77, 658 N.W.2d. 416; Landis v. Physicians Ins. Co. of Wis., 2001 WI 86, 16, 245 Wis.2d 1, 628 N.W.2d 893; Seider 236 Wis.2d 211, 42, 612 N.W.2d 659. Statutory language is read where possible to give reasonable effect to every work, in order to avoid surplusage. Martin, 162 Wis.2d at 894, 470 N.W.2d 900; Bruno 260 Wis.2d 633,20, 664 N.W.2d 656. "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statue is applied according to this ascertainment of its meaning." Bruno, 250 Wis.2d 633, 20, 660 N.W.2d 656. Where statutory language is unambiguous there is not need to consult extrinsic sources interpretation, such as legislative history Id.7, *664Cramer, 236 Wis.2d 473, 18, 613 N.W.2d; Seider, 236 Wis.2d 211, 50, 612 N.W.2d 659; Martin, 162 Wis.2d at 893-94, 470 N.W.2d 900. "In construing or interpreting a statue the court is not a liberty to disregard the plain, clear words of the statute." State v. Pratt, 36 Wis.2d 312, 317, 153, N.W.2d 18 (1967).

State ex rel. Kalal v. circuit Court for Dane County, 271 Wis 2d 633, 662-667 (2004) (footnotes omitted.)

The Commission's declatory ruling errs because it fails to apply the legislature's plain, unambiguous wording in 40.02 (48) (b) 3 to define "deputy sheriff". The stature requires application of the definition of "deputy sheriff" in 40.02 (48) (b) 3 as stated "unless the context requires otherwise". Nothing in the context of 40.02 (48) (b) 3 even suggest, let alone requires, that tghe definition be augmented in any way, either through importing chapter 59 requirements, resorting to "self-definition" theory, reaching for a "test [that] is simple", invoking "clear intentions of the Legislature" from another source, or from anything beyond the statutory language itself. Section 40.02 (48) (b) 3 is complete and clear as is.

There is nothing ambiguous, confusing or particularly mysterious about the second sentence in 40.48 (b) 3's definition of "deputy sheriff". The County concedes this to be true, and correctly discerns its meaning:

The second sentence is clear enough. It provides that "deputy sheriffs" remain "deputy sheriffs" even if they are tepmorarily assigned non-deputy duties.

Brief of Intervenor Douglas County, p. 12. Viewing 40.02 (48) (b) 3 as a whole, the second sentence merely mirrors the end of the first sentence, which provides that non-deputy sheriffs remain non-deputy sheriffs even if occasionally called upon to perform active law enforcement duties.

Nor does "qualifying as a deputy sheriff" either explicitly or implicitly contemplate appointment by the Sheriff under chapter 59 or being sworn on oath. See Mattila v. Employee Trust Fund Board, 243 Wis.2d 90, 106 (Ct. App. 2001) Rather, the term "qualifying as a deputy sheriff" when properly read within the context and structure of the statutory definition itself as Kalal requires, merely refers to "deputy sheriffs" as defined in the first sentence. In other words, those qualified as deputy sheriffs under the definition set forth in the first sentence of 40.02 (48) (b) 3 (as do the Douglas County jailers) do not lose that qualification when temporarily assigned to non-deputy duties. To graft further statuory requirements onto 40.02 (48) (b) 3's definition of "deputy sheriff" which were not adopted by our legislature, as the Commission majority does with chapter 59, misapplies the rules of statuory construction set forth above, and frustrates the legislative intent in the statute's clear wording.

Moreover, even if the Commission majority were correct that "qualifying as a deputy sheriff" in the second sentence of 40.02 (48) (b) 3 means appointed b y the Sheriff under chapter 49, The Commission's declaratory ruling is still incorrect. This is because the plain meaning of the statue does not provide that only those "qualifying as a deputy sheriff" are deputy sheriffs within the meaning of the first sentence. Rather, those "qualifying as a deputy sheriff" are merely "included" within the group defined as deputy sheriffs in the first sentence. If the legislature had intended the definition to include only those "qualifying" by appointment and oath under chapter 59, it could have done so easily enough, and presumably would have.

Perhaps the most unstoppable ratiuonale adopted by the Commission in support of its declatory ruling is that" [c]learly the term "deputy sheriff" is largely self-defining". To say the least, defining a term by reference to itself is an unusualposition to take when the task at hand is interpreting a term the legislature deliberately chose to expressly decline. Even if "deputy sheriff" were "self-defining" - and it is difficult to see howvthat could be true, or what it means - it is entirely irrelevant. The legislature may define any term any way it sees fit for whatever constitutionally legitimate purpose it wants, whether the term is "largely self-definibg" or not. See Wisconsin Concerned Citizens for Cranes and Doves v. Wisconsin DNR 270 Wis.2d 318, 329 (2004) citing Beard v. Lee Enters., 225 Wis2d 1, 23 (1999) (words that are defined in the statute are given the definition that the legislature has provided). So if the legislature chooses to define "dogs" to include "cats", then for purposes of the statute incorporating the definition, a "cat" qualifies as a "dog", irrespective of common sense, self-definitions, or the fact that we all know that a "cat" is decidedly not a "dog".

Also untenable is the Commission majority's interpretation of Mattila v. Employee Trust Fund Board, 243 Wis.2d 90 (Ct. App. 2001) as holding "that being appointed as a 'deputy' by a sheriff is a necessary qualification to be a 'deputy sheriff' within the meaning of Sec. 40.02 (48) (am) 13 and (b) 3, Stats." Mattila says nothing of the sort. In fact, it states the exact opposite and supports the court's conclusion here:

21 Finally, we note that the parties, as well as the circuit court, have discussed whether and how certain provisions of chapter 59 regarding deputy sheriffs apply to the determination of participant status under WIS. STAT. 40.02(48). Neither 40.02(48)(am) nor (b)3 makes reference to the requirements and limitations set forth in WIS. STAT. 59.26 for the appointment of deputy sheriffs. We thus conclude that whether the Douglas County Sheriff complied with the technical requirements for making deputy appointments, and whether the county board **42 properly limited the number of deputy sheriffs by resolution instead of "by ordinance," are not relevant to the proper classification of Mattila and Law under 40.02(48). As we have discussed the key determining factor under the statute is not what the sheriff or the county board has or has not done with respect to appointing Mattila and Law as deputies, but what the two men thermselves do as employees of the Douglas County Sheriff's Department.

The bottom line is that if "deputy sheriff" in chapter 40 was already either "largely self-defining" or defined by chapter 59, as the Commission conclues, there was no need for the legislature to enact a definition under 40.02(48)(b)3. Worded differently, that a definition was adopted by the legislature to be applied "unless the context requires otherwise" necessarily means the legislature did not find the term "deputy sheriff" to be already appropriately defined for purposes of chapter 40, or "largely self-defined". Indeed, expressely including 40.02 (48) (b) (3) in 111.70 (1) (mm) must be reviewed as a delibrate choice by the legislature that chapter 59's requirements do not control the definition of "public safety employees".

Douglas County urges the court to hold that jailers can never be sheriff's deputies under 40.02 (48) based on Mattila, supra, and the court of appeals decision in County of laCrosse v. WERC 170 Wis.2d 155 (Ct. App. 1992) rev'd on other grounds, 180 Wis 2d 100 (1993).

Like the Commission, the County reads far more into Mattila than the case actually supports. In a highly fact-specific case, Mattila simply held that the jailers at issue in that case, although deputized by the sheriff, were not entitled to "protective occupation participant" status but were properly classified by the County as "general employees", because fifty-one per cent (51%) or more of their duties did not involve "active law enforcement". In the words of the Mattila majority:

Being a "deputy sheriff" is a necessary qualification to be deemed a protective occupation participant under 40.02(48)(am), but, contraty to the employees' contention, it is not a sufficient one.

Thus, Mattila had no occasion to address the issue raised by the Union here, i.e. the statutory definition of "deputy sheriff", because jailer Mattila's status as a "deputy sheriff" was conceded. Mattila's holding does not determine the fate of the Union jailers in the case at bar, necause it is mentally distinguishable on the facts. Here the County has done precisely what was lacking in Mattila - it has classified the jailers as "protective occupation participants" whose principal duties involve "active law enforcement." Thus, Mattila is entirely beside the point.

The County's reliance on County of LaCrosse is problematic, since the case was reversed by the Supreme Court, and thus has questionable precedential value. See Blum v. 1st Auto and Casualty Insurance Co,. 326, Wis.2d 729, 750 et. seq. (2010);but cf. State v. Stevens, 343 Wis 2d 157 (2012). Regardless, it is no more on point than Mattila. Both cases concerned employees who were concededly "deputy sheriffs" under 40.02 (48) (b) (3), unlike the disputed status of the Union jailers in the case at bar. The central holding of County of LaCrosse is that it is up to the County, not the collective bargaining process, to determine whether a deputy sheriff acting as a jailer satisfies the other prerequisites to obtain "protective occupation participant" status or not. The analysis has no relevance here, becasue the Union and County have stipulated that the Union jailers satisfy all conditions of "protective occupation participant" except whether or not they are "deputy sheriffs" under 40.02 (48) (b) (3), Stats. Just as being a deputy sheriff is a necessary, but not sufficient condition for "protective occupation participant" status, so too are the other qualifications for "protective occupation participant" status necessary, but not sufficient. Our case addresses the former, not the latter, while County of LacrossMattila address the latter and not the former.

CONCLUSION

The legislature could have declined to enact an explicit definition of "deputy sheriff" specific to chapter 40, or so expressly incorporate that definition into 111.70 (1) (mm) Stats. Had the legislature done so, the Commissionwould have been justified to apply other statutes and rationales to define "deputy sheriff". However, once the legislature chose to adopt 40.02 (48) (b) (3) and make it a part of 111.70 (1) (mm), the definitional inquiry begins and ends at that point. Because the Douglas County jailers are "deputy sheriffs" within the meaning of 40.02 (48) (am) 13 and (b) 3 Stats., and therefore meet the definition for "public safety employees" uner 111.70 (1) (mm), Stats., the declaratory of the Commission is REVERSED.

Dated this 10 day of October, 2012.

BY THE COURT:

RICHARD G. NIESS Circuit Judge.