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  • WisBar News
    June 07, 2016

    Milwaukee County Sheriff Loses Appeal Over County Budget

    Joe Forward

    police boots on the ground

    June 7, 2016 – A state appeals court has ruled against Milwaukee County Sheriff David Clarke Jr., who challenged a county budget that did not provide enough money for him to hire new law enforcement personnel that he deemed necessary to fulfill his duties.

    In 2015, Sheriff Clarke asked Milwaukee County to fund 119 new deputies and 58 new corrections officers. The county’s final budget funded 17 new deputies. Clarke, and the Milwaukee Deputy Sheriffs’ Association, challenged the budget in court.

    Clarke wanted the court to declare that the 2015 budget was arbitrary and unreasonable, created unsafe working conditions, and that it prevented him from fulfilling his constitutional and statutory duties as a county sheriff.

    The Milwaukee County Circuit Court dismissed the claims, concluding Sheriff Clarke did not plead sufficient facts to show he was entitled to a writ of mandamus, which would have forced the county to authorize, create, and fund the positions the sheriff wanted.

    And in Milwaukee Deputy Sheriffs’ Association v. Clarke, 2015AP1577 (June 1, 2016), a three-judge panel for the District I Appeals Court affirmed, concluding that sheriffs do not have constitutional or statutory power to appoint law enforcement officers.

    No Constitutional or Statutory Power

    Sheriffs have a constitutionally protected power to operate jails, maintain law and order, and preserve the peace, the panel noted, but the sheriff’s internal management and administrative duties, such as hiring and appointing deputies, may be regulated.

    And although Wis. Stat section 59.26(2) states that sheriffs “may appoint as many other deputies as the sheriff considers proper,” the panel ruled that this statute has limits.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    “[A] complete reading of the controlling statutes reveals that Sheriff Clarke’s argument that he has unilateral statutory authority to determine the total number of deputies to be appointed lacks merit,” wrote Judge William Brash III.

    Brash noted section 59.22(2)(c), which says the county board may “[e]stablish the number of employees in any department or office including deputies to elective officers.”

    “On its face, this provision conflicts with Wis. Stat. § 59.26(2),” Brash wrote. “However, § 59.22(4) makes it clear that if there is a conflict between the provisions of § 59.22 and any other statute, § 59.22 prevails.”

    Section 59.22(4) says “[i]n the event of conflict between this section and any other statute, this section to the extent of the conflict shall prevail.”

    Budget Not Arbitrary or Unreasonable

    The three-judge panel also ruled that Sheriff Clarke “has a constitutional right to enough financial resources,” not enough law enforcement officers, to fulfill his duties. And the panel noted that the county allows Sheriff Clarke to pay overtime when needed.

    The panel concluded that the county’s 2015 budget is “not arbitrary or unreasonable” because Clarke had enough financial resources to fulfill his duties and “does not have constitutional or statutory authority to hire as many” officers as he sees proper.

    The panel ruled that the circuit court exercised appropriate discretion in denying Clarke’s petition for writ of mandamus, but declined to rule, as requested by the county, that the relief Clarke sought was barred by the separation of powers doctrine.

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