2019 WI 24
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1525
COMPLETE TITLE: Milwaukee District Council 48,
Plaintiff-Respondent,
v.
Milwaukee County,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 379 Wis. 2d 322, 905 N.W.2d 140
PDC No: 2017 WI App 82 - Published
OPINION FILED: March 19, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 24, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Stephanie Rothstein
JUSTICES:
CONCURRED:
DISSENTED: ZIEGLER, J., dissents, joined by ROGGENSACK,
C.J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there was a brief
filed by Alan M. Levy, Samantha J. Wood, and Lindner & Marsack,
S.C., Milwaukee. There was an oral argument by Alan M. Levy.
For the plaintiff-respondent, there was a brief filed (in
the court of appeals) by Mark A. Sweet and Sweet and Associates,
LLC, Milwaukee. There was an oral argument by Mark A. Sweet.
2019 WI 24
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1525
(L.C. No. 2011CV16826)
STATE OF WISCONSIN : IN SUPREME COURT
Milwaukee District Council 48,
Plaintiff-Respondent, FILED
v. MAR 19, 2019
Milwaukee County, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. Milwaukee County seeks to
deny what it characterizes as "unusually generous" pension
benefits to certain members of Milwaukee District Council 48 of
the American Federation of State, County and Municipal Employees
(DC-48), citing the County's structural deficit, the escalating
cost of the Employees' Retirement System of the County of
Milwaukee (ERS), and the County's intention to grant a
particular benefit to only those represented employees who were
hired before 1994. Known as the "Rule of 75," this benefit
allows an eligible employee to receive a full pension when his
age plus years of service total 75. After the Wisconsin
No. 2016AP1525
legislature enacted 2011 Wis. Act 10, which limited collective
bargaining to base wages for municipal employees, the County
resolved to codify existing Rule of 75 eligibility for non-
represented employees. Instead, the County enacted an ordinance
granting Rule of 75 benefits to all employees "not covered by
the terms of a collective bargaining agreement" as long as those
employees were hired before 2006. At the time of enactment,
County employees who were represented by DC-48 were no longer
covered by a collective bargaining agreement (CBA), the last of
which expired in 2009. In order to avoid paying $6.8 million in
benefits the County says it never intended to grant, the County
urges the court to interpret "not covered by the terms of a
collective bargaining agreement" to mean "not represented by a
union." Because we must apply the plain meaning of the
ordinance's text rather than rewrite it to reflect what the
County may have intended, we reject the County's request and
affirm the court of appeals.
I. BACKGROUND
¶2 Milwaukee County has a history of negotiating CBAs
with its employees, including DC-48 members. In 1991, the
County created the Rule of 75, which it amended in 1993. The
County's amended ordinance addressed Rule of 75 eligibility for
employees "not covered by the terms" of a CBA. See Milwaukee
Cty. Gen. Or. § 201.24(4.1) (1993). The amended ordinance
reads:
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No. 2016AP1525
A member[1] who is not covered by the terms of a
collective bargaining agreement at the time his
employment is terminated and who retires on and after
September 1, 1993, shall be eligible for a normal
pension when the age of the member when added to his
years of service equals 75[.]
Milwaukee Cty. Gen. Or. § 201.24(4.1) (1993). Under this
iteration of the ordinance, the Rule of 75 applied to each
employee "not covered by the terms of a collective bargaining
agreement" if the employee's age added to years of service
equaled 75, regardless of the hire date. Id.
¶3 In 1994, the CBA between the County and DC-48 extended
the Rule of 75 benefit to DC-48 members, but only those hired by
the County "prior to January 1, 1994." DC-48 members hired on
or after January 1, 1994 were not eligible for the Rule of 75.
¶4 In 2005, the County amended Milwaukee County General
Ordinance § 201.24(4.1) again, restricting its applicability
within that category of employees not covered by a CBA to only
those employees who were hired prior to January 1, 2006:
A member who is not covered by the terms of a
collective bargaining agreement at the time his
employment is terminated and whose initial membership
in the retirement system . . . began prior to January
1, 2006 who retires on and after September 1, 1993,
shall be eligible for a normal pension when the age of
the member when added to his years of service equals
75[.]
Milwaukee Cty. Gen. Or. § 201.24(4.1) (2006) (emphasis added).
In other words, the County established a cutoff date for
1 "Member" means any member of the County's retirement
system. All County employees become members of the retirement
system when hired.
3
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application of the Rule of 75 to employees not covered by the
terms of a CBA: employees within that category would be
eligible for the Rule of 75 benefit only if they were hired
before January 1, 2006.
¶5 In 2008, with the current CBA set to expire on
December 31, 2008 the County started negotiating a new CBA with
DC-48. The County and DC-48 agreed to extend the CBA for
another three months. Although a tentative successor agreement
was reached, the County Board never approved it and DC-48's
members never ratified it. DC-48's CBA expired on March 31,
2009, and no subsequent CBA was ever consummated.
¶6 Effective June 2011, the legislature enacted 2011 Wis.
Act 10, which limited collective bargaining for "general
municipal employees" to base wages.2 See 2011 Wis. Act 10; see
also Wis. Stat. § 111.70(1)(a) (2011-12).3 As a result of other
changes made by Act 10, DC-48's certification as a
representative of County general employees was eventually
revoked in January 2012.
¶7 After the enactment of Act 10, the County again
amended Milwaukee County General Ordinance § 201.24(4.1) to
codify Rule of 75 eligibility for employees covered by the terms
of a CBA on September 29, 2011 and to add the demarcating date
2It is undisputed DC-48 members are general municipal
employees.
3All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
4
No. 2016AP1525
of September 29, 2011 for that category of employees not covered
by a CBA. The relevant parts of the ordinance provide:
(a) A member who, on September 29, 2011, is employed
and is not covered by the terms of a collective
bargaining agreement, and whose initial membership in
the retirement system . . . began prior to January 1,
2006 . . . shall be eligible for a normal pension
when the age of the member when added to his years of
service equals seventy-five (75)[.]
(b) A member who, on September 29, 2011, is employed
and is covered by the terms of a collective bargaining
agreement with . . . District Council 48, or with the
Technicians, Engineers and Architects of Milwaukee
County, or with the International Association of
Machinists and Aerospace Workers, and whose initial
membership date is prior to January 1, 1994, shall be
eligible for a normal pension when the age of the
member when added to his years of service equals
seventy-five (75)[.]
Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a)-(b) (2011)4 (emphasis
added).5 The amendment applied the Rule of 75 to employees "not
covered by the terms of a collective bargaining agreement" on
September 29, 2011 and hired "prior to January 1, 2006." Id.
(emphasis added). For an employee who, on September 29, was
"covered by the terms of a collective bargaining agreement" with
DC-48 or one of the other enumerated unions, the Rule of 75
4 All subsequent references to this ordinance are to the
2011 version unless otherwise indicated.
5 Paragraphs (2)(c) through (2)(g) in the ordinance address
employees "covered by the terms of a collective bargaining
agreement" with other unions. The interpretation of these
paragraphs was not raised by the parties and therefore is not
before us. See Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(c)-
(2)(g)(2011).
5
No. 2016AP1525
applied only if the employee was hired "prior to January 1,
1994." Id. (emphasis added). This disparate treatment of
"covered" and "not covered" employees under the ordinance gives
rise to the dispute before us. Employees not covered by the
terms of a CBA have a much later cutoff date-of-hire to be
eligible for application of the Rule of 75, thereby expanding
the pool of employees within that category who are eligible for
the Rule of 75 benefit.
¶8 After DC-48's decertification, it sought a declaratory
judgment that its members were not covered by the terms of a
CBA, and therefore all members hired prior to January 1, 2006
(as opposed to January 1, 1994) were eligible for the Rule of
75. Both parties moved for summary judgment. The County argued
that employees represented by DC-48 on September 29, 2011 were
not entitled to the Rule of 75 unless they were hired prior to
January 1, 1994. The County asserted these employees were in
fact represented by DC-48 and covered by the terms of a CBA
despite the last CBA expiring in 2009. DC-48 argued that, as of
the September 29, 2011 trigger date, its members were not
covered by the terms of a CBA, and were therefore entitled to
the Rule of 75 as long as they were employed prior to January 1,
2006.
¶9 The circuit court granted DC-48's motion and denied
the County's.6 It reasoned the last CBA between DC-48 and the
County expired in 2009; therefore, DC-48 members were not
6 The Honorable Stephanie G. Rothstein presiding.
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No. 2016AP1525
covered by the terms of a collective bargaining agreement on
September 29, 2011. The court of appeals affirmed. Milwaukee
Dist. Council 48 v. Milwaukee Cty., 2017 WI App 82, ¶1, 379
Wis. 2d 322, 905 N.W.2d 140. The County filed a petition for
review, which we granted.
II. DISCUSSION
¶10 Although the legislative changes made by Act 10 and
the County's multiple amendments to its ordinance form the
backdrop for this dispute, the central issue is quite simple:
under Milwaukee County General Ordinance § 201.24(4.1)(2), were
DC-48 members "covered by the terms of a collective bargaining
agreement" on September 29, 2011? If so, only DC-48 members
hired prior to January 1, 1994 would be eligible for the Rule of
75. This would leave DC-48 members hired between January 1,
1994 and January 1, 2006 ineligible for the benefit. However,
if DC-48 members were not covered by the terms of a CBA on
September 29, 2011, then the members hired between January 1,
1994 and January 1, 2006 would be entitled to the Rule of 75
benefit.
A. Standard of Review
¶11 This issue involves the interpretation of an
ordinance, which is a question of law we review de novo.
Schwegel v. Milwaukee Cty., 2015 WI 12, ¶18, 360 Wis. 2d 654,
859 N.W.2d 78. In interpreting municipal ordinances, we apply
the same principles used in statutory interpretation. Stoker v.
Milwaukee Cty., 2014 WI 130, ¶17, 359 Wis. 2d 347, 857
N.W.2d 102. "[S]tatutory interpretation 'begins with the
7
No. 2016AP1525
language of the statute.'" State ex rel. Kalal v. Circuit Court
for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(quoted source omitted). If the meaning of the language is
plain, our inquiry ordinarily ends. Id. We give statutory
language "its common, ordinary, and accepted meaning, except
that technical or specially-defined words or phrases are given
their technical or special definitional meaning." Id. Context
and structure are also important to meaning. Id., ¶46.
"Therefore, statutory language is interpreted in the context in
which it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
results." Id. If this inquiry "yields a plain, clear statutory
meaning, then there is no ambiguity, and the statute is applied
according to this ascertainment of its meaning." Id. (quoted
source omitted). If the language is unambiguous, then we need
not "consult extrinsic sources of interpretation, such as
legislative history." Id.
B. Analysis
¶12 The County argues DC-48 employees were in fact covered
by the terms of the expired CBA on September 29, 2011. This
argument stems from Wis. Stat. § 111.70's duty to collectively
bargain in good faith, which includes the duty to maintain the
contractual status quo during contract negotiations, even if the
previous CBA expired. The County acknowledges that Act 10
reduced the scope of collective bargaining, but nevertheless
insists that its duty to maintain the previous wage rates under
8
No. 2016AP1525
the expired CBA did not end until DC-48's decertification in
2012——after September 29, 2011. As a result, the County
contends DC-48 members were "covered by the terms" of the
expired CBA. We disagree.
¶13 Setting aside the duty to bargain in good faith, the
County's ordinance, specifically its use of the phrase "covered
by the terms" of a CBA, is plain. The ordinance creates two
classes of employees: (1) those "covered by the terms" of a CBA
with one of the enumerated unions and (2) those "not covered by
the terms" of a CBA. See Milwaukee Cty. Gen. Or.
§ 201.24(4.1)(2)(a)-(b). Regardless of what the County
intended, the plain meaning of "covered by the terms" of a CBA
includes only those employees bound by a valid CBA. It is
difficult to imagine how an employee could be "covered by the
terms" of an expired CBA that no longer binds its parties. If a
CBA has expired, then, absent some other consideration, its
terms no longer cover the parties.
¶14 The County's invocation of the duty to bargain in good
faith and maintain the status quo does not alter our
interpretation of the plain text of the ordinance. As part of
the duty to "bargain collectively," federal law provides that
employers have an obligation to "meet . . . and confer in good
faith with respect to wages, hours, and other terms and
conditions of employment." NLRB v. Katz, 369 U.S. 736, 742-43
(1962) (citation and quotation marks omitted). In Katz, the
Supreme Court held a refusal to negotiate over mandatory
subjects of collective bargaining violated the statutory duty to
9
No. 2016AP1525
negotiate in good faith. Id. Accordingly, "an employer's
unilateral change in conditions of employment under
negotiation . . . is a circumvention of the duty to negotiate
which frustrates the objectives" of the National Labor Relations
Act. Id. Given a similar statutory obligation to negotiate in
good faith, see Wis. Stat. § 111.70(1)(a), (3)(a),7 our courts
adopted Katz's reasoning. See St. Croix Falls Sch. Dist. v.
WERC, 186 Wis. 2d 671, 677-80, 522 N.W.2d 507 (Ct. App. 1994)
(citing Katz and explaining that "[w]hile status quo recognizes
that changes can occur during a contract hiatus if such changes
would otherwise have been permitted under the expired contract,
it does not permit an employer to make unilateral changes in
areas that are otherwise mandatory subjects for the collective
bargaining table"); Jefferson Cty. v. WERC, 187 Wis. 2d 647,
654, 523 N.W.2d 172 (Ct. App. 1994) (explaining the "well-
established rule that an employer has a duty to maintain the
status quo with respect to wages, hours and conditions of
employment during contract negotiations, and that an employer's
'unilateral change' in employment conditions or wages breaches
7
Paragraph (1)(a) defines "collective bargaining" in part
as "the performance of the mutual obligation of a municipal
employer, through its officers and agents, and the
representative of its municipal employees in a collective
bargaining unit, to meet and confer at reasonable times, in good
faith, with the intention of reaching an agreement . . . with
respect to wages for general municipal employees." Wis. Stat.
§ 111.70(1)(a). Subdivision (3)(a)4 prohibits municipalities
from refusing "to bargain collectively." § 111.70(3)(a)4.
10
No. 2016AP1525
the duty to bargain collectively" (quoting Katz, 369 U.S. at
742-46; emphasis added)).
¶15 Wisconsin Stat. § 111.70 requires municipal employers
"to meet and confer at reasonable times, in good faith, with the
intention of reaching an agreement . . . with respect to wages
for general municipal employees," and the statute provides "[i]t
is a prohibited practice for a municipal employer . . . [t]o
refuse to bargain collectively." Wis. Stat. § 111.70(1)(a),
(3)(a)4. An employer violates this duty to bargain collectively
if it makes any unilateral changes; the employer must maintain
the status quo with respect to those terms subject to mandatory
collective bargaining. Since enactment of Act 10, the only
mandatory subject of collective bargaining for general municipal
employees is base wages. Accordingly, the County was obligated
to maintain base wages at the same rate specified in the expired
CBA.8
¶16 The obligation to maintain the status quo does not,
however, support the County's argument. The status quo
obligation arises statutorily, as recognized in our case law; it
does not arise from the expired CBA. See Wis. Stat.
§ 111.70(1)(a), (3)(a); St. Croix Falls Sch. Dist., 186
Wis. 2d at 677-80. The parties agree the last CBA expired in
March 2009, and no successor agreement was reached. Because no
contractual obligations existed on September 29, 2011, the
8
Wisconsin Stat. § 111.70 also limits any increase in base
wages to the increase in the consumer price index.
11
No. 2016AP1525
members of DC-48 were not "covered by the terms" of a CBA on
that date. The CBA did not give rise to any obligation to
maintain base wages; rather, only § 111.70 did. The dissent
sidesteps this distinction and confuses the County's statutory
obligation to maintain the status quo during contract
negotiations, with contractual obligations that no longer
existed after the CBA expired, insisting that these statutory
obligations mean that "terms of DC-48's expired CBA with
Milwaukee County remained in effect." Dissent, ¶49. The
dissent neglects to explain how a statute is capable of
resuscitating a defunct contract. Expiration of the CBA means
none of its terms survive and even importing the County's
statutory status quo obligation into the Rule of 75 ordinance,
as the dissent does, would not resurrect them.9
¶17 The dissent complains that our reading of the
ordinance results in meaningless surplusage. Dissent, ¶¶31, 49.
This concern is misplaced. The canon against surplusage guides
us to read legislative language "where possible to give
9
Peculiarly, the dissent accuses the court of failing to
consider "how collective bargaining works," referring to the
County's status quo obligations. Dissent, ¶49. We do not
overlook "how collective bargaining works" but with some detail
reject the dissent's proffered construction of the ordinance
because it improperly reaches beyond the ordinance's text, and
necessarily injects an assessment of the efficacy of the
County's legislative choices, which we decline to do. By
relying solely on collective bargaining law rather than the
actual text of the ordinance, the dissent's construction
improperly "travel[s] . . . beyond the borders of the statute."
United States v. Great N. Ry., 287 U.S. 144, 154 (1932).
12
No. 2016AP1525
reasonable effect to every word, in order to avoid surplusage."
Kalal, 271 Wis. 2d 633, ¶46 (emphasis added); see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 176 (2012) ("Because legal drafters should not
include words that have no effect, courts avoid a reading that
renders some words altogether redundant.").10 Under our
interpretation, both paragraphs (2)(a) and (2)(b) operate on
different categories of employees and perform different
functions. See Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a)-(b).
Paragraph (2)(a) provides an eligibility date of January 1, 2006
10Even if a plain meaning interpretation creates
surplusage, sometimes legislatures do create surplusage and
redundancies of language, and therefore the canon against
surplusage is not absolute. See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 176-77
(2012); State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 ("Statutory language
is read where possible to give reasonable effect to every word,
in order to avoid surplusage." (emphasis added)); State v.
Mason, 2018 WI App 57, ¶26, 384 Wis. 2d 111, 918 N.W.2d 78
(explaining that "[t]he directive that we endeavor to give
meaning to all parts of statutes so as to avoid surplusage is
not a directive that we give different terms different meanings,
regardless where that leads" and "the 'preference for avoiding
surplusage constructions is not absolute'" (quoted source
omitted; emphasis omitted)); see also Connecticut Nat'l Bank v.
Germain, 503 U.S. 249, 253-54 (1992) (explaining that canons of
construction, like the canon against surplusage, "are no more
than rules of thumb that help courts determine the meaning of
legislation, and in interpreting a statute a court should always
turn first to one, cardinal canon before all others," the canon
"that courts must presume that a legislature says in a statute
what it means and means in a statute what it says there"). The
dissent's supposition that the use of "covered by the terms of"
means something different than "covered by a" CBA in fact leads
nowhere, as the dissent fails to identify any textual difference
in meaning between the two phrases.
13
No. 2016AP1525
for employees not covered by the terms of a CBA. Id. Paragraph
(2)(b), on the other hand, provides an earlier eligibility date
of January 1, 1994 for employees covered by the terms of a CBA
with DC-48 or other specified unions. Id. Neither paragraph is
left without a textual function and every word is given meaning.
¶18 Even if no employees were in fact covered by the terms
of a CBA with DC-48 (due to the expiration of the previous CBA),
this extrinsic fact is immaterial to ascertaining the
ordinance's plain meaning. The concept of surplusage is
intrinsic to the text of the ordinance; attempting to avoid
surplusage is a tool employed as part of our textual analysis.
While we endeavor to give effect to every word, we do not reach
beyond the statutory text itself to consider the practical,
political, or policy implications of the law, nor do we weigh
the extrinsic ramifications of our construction, such as the
"cost to taxpayers" noted by the dissent. Dissent, ¶41 n.6.
Instead, we confine our analysis of unambiguous laws to their
text. See Kalal, 271 Wis. 2d 633, ¶¶46, 50 (explaining that
"Wisconsin courts ordinarily do not consult extrinsic sources of
statutory interpretation unless the language of the statute is
ambiguous," and extrinsic sources are "interpretive resources
outside the statutory text"). It would be improper to consider
extrinsic evidence of whether the ordinance accomplished the
County's goals. It does not matter if the County created a
category no employees filled when the County passed the
ordinance; each paragraph of Milwaukee County General Ordinance
§ 201.24(4.1) bears a textual function. Accordingly, there is
14
No. 2016AP1525
no surplusage problem. Any apprehension about the existence of
a category into which no employee may fit necessarily concerns
the wisdom of the County's choice of language. Such second-
guessing of the prudence of the County's ordinance would reach
beyond the proper judicial role, which is limited to
interpreting and applying the clear text.
¶19 The canon against surplusage usually applies only if
there are two ways to read a text. See Scalia, supra ¶17, at
176 (explaining that the canon typically applies when a
statutory provision is susceptible to two different
interpretations, one of which will result in surplusage while
the other does not); see also Bourne Valley Court Tr. v. Wells
Fargo Bank, NA, 832 F.3d 1154, 1164 (9th Cir. 2016) (Wallace,
J., dissenting) (explaining that "courts should not apply the
canon without first deciding that there are at least two
potential readings of the statute (one that renders parts
superfluous and one that does not)"). The meaning of the phrase
"covered by the terms" of a CBA is plain, and it is not
susceptible to the County's (or the dissent's) desired
construction.
¶20 Disregarding the actual text of the ordinance, the
County proffers an alternative definition of "covered by the
terms" of a CBA. It claims that "covered by the terms" of a CBA
was merely a "commonly understood method of categorization"
meant to distinguish union employees (including those with
expired CBAs) from those who had never worked under a CBA.
Citing Local 321, Int'l Ass'n of Fire Fighters v. City of
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No. 2016AP1525
Racine, 2013 WI App 149, 352 Wis. 2d 163, 841 N.W.2d 830, the
County argues an employee is "covered by the terms" of a CBA
"whenever a CBA has been approved and the employee falls within
the category of to whom the CBA pertains." In other words, the
County wants "covered by the terms" of a CBA to mean any
employee represented by a union who was at one point subject to
a CBA.
¶21 In support of this construction, the County points to
the whereas clauses of the 2011 amendments to Milwaukee County
General Ordinance § 201.24(4.1)(2). One of these clauses
expressed the County Board's "wish[]" to "codify in the
ordinances pension provisions previously found in such
collective bargaining agreements units for" general municipal
employees "related to the pension multiplier, the normal
retirement age and the Rule of 75[.]" Based on the County
Board's "wishes," the County insists that it could not have
meant to expand eligibility for the Rule of 75 to DC-48
employees hired after January 1, 1994 because the expired CBA
did not do so. The language the County enacted, however, says
otherwise, and it is the enacted language the court must apply.
"The words of a governing text are of paramount concern, and
what they convey, in their context, is what the text means."
Scalia, supra ¶17, at 56; see also Kalal, 271 Wis. 2d 633, ¶¶44-
46 (explaining that we begin statutory analysis "with the
language of the statute" read "in the context in which it is
used; not in isolation but as part of a whole; in relation to
the language of surrounding or closely-related statutes; and
16
No. 2016AP1525
reasonably, to avoid absurd or unreasonable results," and if
this analysis yields a plain meaning, we end our inquiry).
Although whereas clauses and statutory preambles may be useful
in resolving ambiguities, such language "cannot enlarge [a
statute's] scope and operation." See Smith v. City of
Brookfield, 272 Wis. 1, 3-5, 74 N.W.2d 770 (1956); see also
Scalia, supra ¶17, at 218 (explaining that while language
appearing in a statutory prologue may be "considered in
determining which of various permissible meanings the
dispositive text bears," prefatory statements of legislative
intention "cannot give words and phrases of the dispositive text
itself a meaning that they cannot bear"). "It is the law that
governs, not the intent of the lawgiver," and "[m]en may intend
what they will; but it is only the laws that they enact which
bind us." Kalal, 271 Wis 2d 633, ¶52 (quoting Antonin Scalia, A
Matter of Interpretation: Federal Courts and the Law 17 (1997)
(emphasis omitted)). "[I]t is the text's meaning, and not the
content of anyone's expectations or intentions, that binds us as
law." Lawrence H. Tribe, Comment, in Antonin Scalia, A Matter
of Interpretation: Federal Courts and the Law 66 (1997); see
also Kalal, 271 Wis. 2d 633, ¶¶44-46, 52.
¶22 The dissent similarly strays from the text of the
ordinance while assigning unwarranted import to the phrase "the
terms of" in isolation from the full phrase: "covered by the
terms of a collective bargaining agreement." The dissent
admonishes that our reading of Milwaukee County General
Ordinance § 201.24(4.1)(2) renders the phrase "'by the terms
17
No. 2016AP1525
of' . . . functionally useless within subsection (4.1)(2)."
Dissent, ¶38. The dissent accuses us of conflating the phrase
"covered by the terms of a collective bargaining agreement" with
the phrase "covered by a collective bargaining agreement,"
insisting there must be a difference between the two. Dissent,
¶42.
¶23 Specifically, the dissent cites Milwaukee County
General Ordinance § 201.24(3.11)(1)(a), (1)(e), and (1)(f)
(2018) as other instances of the County's use of both "covered
by the terms of" a CBA and "covered by" a CBA. Dissent, ¶¶45-
47. The dissent insists "[t]he Board of Supervisors' choice to
use differing language in neighboring sections of the County
Employee Retirement System ordinances should be respected," and
the use of these phrases in paragraph (1)(a) in particular "is a
distinction with a difference." Dissent, ¶45. Much like its
analysis of § 201.24(4.1)(2), however, the dissent offers
nothing more than a bare conclusion that the phrases must mean
something different. Dissent, ¶45. The dissent cites two other
ordinance sections using the phrase "covered by a collective
bargaining agreement," but its analysis of these provisions is
similarly conclusory. Dissent, ¶48. The dissent's inability to
identify any operative difference between being "covered by" a
CBA and being "covered by the terms" of a CBA lends credence to
the likelihood that the use or omission of "the terms of" is
nothing more than a "stylistic mannerism." See Scalia, supra
¶17, at 177.
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No. 2016AP1525
¶24 By insisting that "covered by the terms" of a CBA is
different than "covered by" a CBA without identifying a textual
basis for the distinction, the dissent disregards the reality
that "[s]ometimes drafters do repeat themselves and do include
words that add nothing of substance[.]" Scalia, supra ¶17, at
176; see also Arlington Cent. Sch. Dist. Bd. of Educ. v.
Murphy, 548 U.S. 291, 299 n.1 (2006) ("While it is generally
presumed that statutes do not contain surplusage, instances of
surplusage are not unknown."); United States v. Bronstein, 849
F.3d 1101, 1110 (D.C. Cir. 2017) (declining to apply the canon
against surplusage, and observing that at times "drafters do
repeat themselves and do include words that add nothing of
substance" (quoting Scalia, supra ¶17, at 176); Kalal, 271
Wis. 2d 633, ¶46 ("Statutory language is read where possible to
give reasonable effect to every word, in order to avoid
surplusage." (emphasis added)); State v. Mason, 2018 WI App 57,
¶26, 384 Wis. 2d 111, 918 N.W.2d 78 ("[S]ometimes the most
reasonable reading of a statute, one that gives it the
legislatively intended effect, is one that renders some language
in the statute surplusage.").
¶25 "Though one might wish it were otherwise,
drafters . . . often (out of a misplaced pursuit of stylistic
elegance) use different words to denote the same concept."
Scalia, supra ¶17, at 170; see also Freeman v. Quicken Loans,
Inc., 566 U.S. 624, 635 (2012) (interpreting "portion," "split,"
and "percentage" to "mean the same thing" explaining this is "a
perhaps regrettable but not uncommon sort of lawyerly iteration"
19
No. 2016AP1525
to include redundant terms, and "the canon against surplusage
merely favors that interpretation which avoids surplusage"
(emphasis omitted)); Doe v. Boland, 698 F.3d 877, 881-82 (6th
Cir. 2012) (explaining "the presumption against surplusage does
not apply to doublets——two ways of saying the same thing that
reinforce its meaning" and noting "[t]he U.S. Code is replete
with meaning-reinforcing redundancies").11 We should be wary,
however, of "creat[ing] unforeseen meanings or legal effects
from" what is nothing more than a "stylistic mannerism."
Scalia, supra ¶17, at 177; see also Connecticut Nat'l Bank v.
Germain, 503 U.S. 249, 253-54 (1992) (explaining that the canon
against surplusage must yield to the "cardinal" canon "that
courts must presume that a legislature says in a statute what it
means and means in a statute what it says there").
11 Surely the dissent, in endeavoring to find outcome-
determinative meaning in each and every word, would not ascribe
interpretive significance to the "doublets and triplets"
prevalent in legal writings of every kind, such as "[e]xecute
and perform——what satisfies one but not the other? Rest,
residue and remainder——could a judge interpret these as
referring to three distinct things? Peace and quiet——when is
peace not quiet?" See Scalia, supra ¶17, n.10, at 177. As yet
another example of how slight variations in the expression of a
term often bear no substantive meaning, "[b]efore the 2007
revisions, the Federal Rules of Civil Procedure contained
varying requirements for cause, for good cause, for cause shown,
and for good cause shown. There was no reason to believe that,
after removal of the attendant modifiers, the cause did not have
to be good or did not have to be shown." Scalia, supra ¶17,
n.10, at 177. So too here; there is no reason to assign a
different meaning to "covered by the terms of a collective
bargaining agreement" than "covered by a collective bargaining
agreement" and the dissent identifies no textual basis for doing
so, despite its repeated invocations of plain meaning.
20
No. 2016AP1525
Additionally, the dissent offers no elaboration on how our
interpretation leaves "by the terms" functionally useless. Our
interpretation gives the phrase "covered by the terms" of a CBA
its plain meaning; it means that the terms of the CBA——not
statutory obligations——must cover the employees at issue.
¶26 Although the dissent would adopt it, we are
unpersuaded by the County's largely unsupported assertion that
there existed some "commonly understood" definition of "covered
by the terms" of a CBA that included employees who were not in
fact covered by the terms of a CBA. An employee is not "covered
by the terms" of a CBA merely by virtue of being represented by
a union. If the County had intended such a categorization, it
could have easily written the ordinance to accomplish this, as
the court of appeals noted. See Milwaukee Dist. Council 48, 379
Wis. 2d 322, ¶23 ("If the County intended by the ordinance to
exclude general county employees whose CBAs expired before the
effective date, the County could have said so."). The County
Board's generally expressed "wishes" to codify existing CBAs
does not change our analysis. Although whereas clauses may be
useful in ascertaining meaning in the face of an ambiguous
ordinance, they are not part of the ordinance and may not
override the unambiguous language of the ordinance itself. See
City of Brookfield, 272 Wis. at 3-5 (addressing a whereas clause
in a zoning ordinance and explaining "the preamble of a statute
cannot enlarge its scope and operation, but it may be considered
in determining the intent of the act." (citation omitted));
State ex rel. Columbia Corp. v. Town Bd. of Pac., 92
21
No. 2016AP1525
Wis. 2d 767, 779-780 & n.10, 286 N.W.2d 130 (Ct. App. 1979)
(explaining that a statutory preamble is not part of the
enactment and is "merely 'instructive of legislative
intent'"(quoted source omitted)); see also District of Columbia
v. Heller, 554 U.S. 570, 577-78 & n.3 (2008) (explaining that
"in America 'the settled principle of law is that the preamble
cannot control the enacting part of the statute in cases where
the enacting part is expressed in clear, unambiguous terms,'"
but prefatory language may help to clarify an ambiguity (quoted
source omitted)).
¶27 In this case, we are not called upon to construe an
ambiguous ordinance; the ordinance is quite clear so we need not
consult extrinsic sources. "We assume that the legislature's
intent is expressed in the statutory language." Kalal, 271
Wis. 2d 633, ¶44. Any indicia of the County's subjective
purpose in enacting the ordinance beyond what is expressed in
the text of the ordinance itself are irrelevant because the
meaning of the enacted text is plain. See id., ¶46.
¶28 The County takes Local 321 out of context in an
attempt to support its proffered "commonly understood"
definition of "covered by the terms" of a CBA; the case does not
support the County's construction. In Local 321, the City of
Racine and the union signed two successive CBAs, and the second
CBA——although signed and legally binding——was not yet in effect.
Local 321, 352 Wis. 2d 163, ¶¶1, 3. The City argued the second
CBA did not "cover" certain employees because it was not
currently in effect. Id., ¶14. The court of appeals rejected
22
No. 2016AP1525
this argument because under "ordinary principles of contract
law . . . the fact that a contract contemplates that performance
will not begin until some date in the future does not change the
fact that the contract exists and is an enforceable, legally
protected relationship." Id. The court of appeals correctly
recognized that the plain meaning of "covered by" a CBA meant
"an employee is 'covered by' a CBA whenever a CBA has been
approved and the employee falls within the category of to whom
the CBA pertains." Id., ¶12. The County takes this statement
out of context to mean that an expired CBA still covers the
member who originally agreed to it. In doing so, the County
disregards the distinction between the legally binding CBA
governing the affected employees in Local 321 and the
inoperative CBA in this case. Logically, DC-48 employees cannot
be covered by the terms of the expired CBA because it is a legal
nullity. Accepting the County's argument would lead to the
absurdity of sustaining an expired contract in perpetuity.
¶29 Finally, other portions of Milwaukee County General
Ordinance § 201.24(4.1) rebut the County's position that
"covered by the terms" of a CBA really means "represented by a
union." The ordinance uses each of these phrases to identify
different groups of employees. Compare Milwaukee Cty. Gen. Or.
§ 201.24(4.1)(2)(a)-(b) (using "covered by the terms" of a CBA)
with § 201.24(4.1)(2)(f)-(g) (applying to employees "covered by
the terms" of a CBA but "not represented by" particular unions
23
No. 2016AP1525
(emphasis added)).12 Logically, the County could not have meant
"represented by a union" when it wrote "covered by the terms" of
a CBA because in paragraph (2)(f) it created a category of
members who were both "covered by the terms of a collective
bargaining agreement with the Milwaukee Deputy Sheriffs
Association" and "not represented by the Milwaukee Deputy
Sheriffs Association," and in paragraph (2)(g) it created a
category of members who were both "covered by the terms of a
collective bargaining agreement with the Milwaukee County
Firefighters Association (IAFF Local 172)" and "not represented
by the Milwaukee County Firefighters Association (IAFF Local
172)." "When the legislature uses different terms in a statute—
—particularly in the same section——we presume it intended the
terms to have distinct meanings." Johnson v. City of Edgerton,
207 Wis. 2d 343, 351, 558 N.W.2d 653 (Ct. App. 1996); see also
Armes v. Kenosha Cty., 81 Wis. 2d 309, 318, 260 N.W.2d 515
(1977) ("Where the legislature uses two different
phrases, . . . in two paragraphs in the same section, it is
presumed to have intended the two phrases to have different
12
We are aware that the County added paragraphs (f) and (g)
of Milwaukee County General Ordinance § 201.24(4.1)(2) after
adopting the revisions at issue in this case. Regardless of
when the ordinance paragraphs were enacted, the use of both
"covered by the terms of a collective bargaining agreement" and
"represented by" a union indicates the phrases are not
synonymous and cannot mean the same thing. We interpret the
language of the ordinance "not in isolation but as part of a
whole" and "in relation to the language of surrounding or
closely-related statutes." Kalal, 271 Wis. 2d 633, ¶46.
24
No. 2016AP1525
meanings."). The County's argument works only if we understand
"covered by the terms" of a CBA to identify the same group of
people as those "represented by" a union. The use of both
phrases in different portions of the same section of an
ordinance belies this construction. The County demonstrated it
knows the difference between the two phrases by using them in
different ways. Indeed, the County created a class of members
who were both covered by the terms of a CBA with a particular
union but not represented by that union.
III. CONCLUSION
¶30 The meaning of Milwaukee County General Ordinance
§ 201.24(4.1) is plain. Employees not covered by the terms of a
CBA are entitled to the benefit of the Rule of 75 if they were
hired prior to January 1, 2006. On September 29, 2011, the
operative date in the County's amended ordinance, DC-48 members
were not covered by the terms of a CBA because the last CBA had
expired. Although the County may have been obligated to
maintain base wages at the same rates expressed under the
expired CBA, the obligation derives from statutes, not any
contract. DC-48 members were not "covered by the terms" of the
expired CBA, which lacks any legal force or validity. If the
County intended a different allocation of benefits, it should
have chosen different language. But with respect to County
employees hired between 1994 and 2006, the plain text enacted by
the County does not confine the application of the Rule of 75 to
unrepresented employees and the court may not rewrite the
ordinance to give effect to the County's purported intentions.
25
No. 2016AP1525
By the Court.——The decision of the court of appeals is
affirmed.
26
No. 2016AP1525.akz
¶31 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I
dissent from the majority opinion because it misconstrues
Milwaukee County General Ordinances ("MCGO") §§ 201.24(4.1)(2)
and 201.24(3.11)(1). It errantly dispenses with the choices set
out in the ordinances that use two different phrases: (1)
"covered by the terms of a collective bargaining agreement" and
(2) "covered by a collective bargaining agreement." The opinion
pays no heed to whether the phrases chosen by the Milwaukee
County Board of Supervisors have distinct meanings. Rather, it
conflates the terms despite their use in the context of this and
also nearby, closely-related ordinance sections. The majority
completely disregards this language and yet claims to engage in
a plain meaning analysis that serves to render "by the terms of"
mere surplusage. Instead of evaluating whether that language
can be construed to have meaning, the majority injects its
conclusion that the Board of Supervisors did not mean what it
said, relying on the notion "that at times
drafters . . . include words that add nothing of substance."
Majority op., ¶24 (internal quotations omitted). Such an
interpretation stands in opposition to basic rules of
construction, which traditionally strive to give effect to each
word of an ordinance when possible. Due to the majority's
significant departure from a plain meaning analysis of
§ 201.24(4.1)(2), I respectfully dissent.
I
¶32 The most glaring error in the majority's
interpretation of MCGO § 201.24(4.1)(2) lies in its failure to
1
No. 2016AP1525.akz
evaluate whether the language "covered by the terms of a
collective bargaining agreement," as used throughout the
subsection, could indeed have meaning when compared with a
previous section of the ordinance that does not use that phrase.
The majority proclaims its intent to adhere to the plain text of
the ordinance, and then ignores traditional tools of
construction to conclude that "[b]ecause no contractual
obligations existed on September 29, 2011," pursuant to an
active collective bargaining agreement ("CBA"), "the members of
DC-48 were not 'covered by the terms' of a CBA on that date."
Majority op., ¶16. As will be explained below, such an
interpretation belies the plain meaning of the ordinance.
A
¶33 It is well-established that the rules regarding the
interpretation of state statutes apply equally when interpreting
local ordinances. State v. Ozaukee Cty. Bd. of Adjustment, 152
Wis. 2d 552, 559, 449 N.W.2d 47 (Ct. App. 1989) (citing
Hambleton v. Friedmann, 117 Wis. 2d 460, 462, 344 N.W.2d 212
(Ct. App. 1984)). I start then by addressing longstanding and
fundamental principles of statutory interpretation that should
guide our analysis.
¶34 In construing statutes, "[s]tatutory language is given
its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." State ex rel. Kalal
v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. However, "statutory language is
2
No. 2016AP1525.akz
interpreted in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46. "If this
process of analysis yields a plain, clear statutory meaning,
then there is no ambiguity, and the statute is applied according
to this ascertainment of its meaning." Id. "In construing or
interpreting a statute the court is not at liberty to disregard
the plain, clear words of the statute." Id.
¶35 Additionally and importantly, "[s]tatutory language is
read where possible to give reasonable effect to every word, in
order to avoid surplusage." Id. The majority correctly states
that this rule is not absolute, as "[s]ometimes drafters do
repeat themselves and do include words that add nothing of
substance[.]" Majority op., ¶24 (citing Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 176
(2012)). However, this is the exception, not the rule, when
interpreting statutes. Indeed, we have repeatedly stated that
we should strive to not interpret statutes in a manner that
renders any word or phrase unnecessarily superfluous. See,
e.g., Metropolitan Assocs. v. City of Milwaukee, 2018 WI 4,
¶¶41-42, 379 Wis. 2d 141, 905 N.W.2d 784 (interpreting Wis.
Stat. § 70.32(1) so as to give effect to the word "practicably,"
leading to a conclusion that mass appraisal techniques are
authorized by statute); Madison Teachers, Inc. v. Walker, 2014
WI 99, ¶151, 358 Wis. 2d 1, 851 N.W.2d 337 (construing Milwaukee
Charter Ordinance § 36–13–2–d as distinguishing between
3
No. 2016AP1525.akz
contributions made by the City of Milwaukee and contractually
protected benefits of plan members such that "contributions"
could not be considered a "benefit" because such an
interpretation gave effect to each word of the ordinance and
avoided surplusage); Bostco LLC v. Milwaukee Metro. Sewerage
Dist., 2013 WI 78, ¶55, 350 Wis. 2d 554, 835 N.W.2d 160 (reading
Wis. Stat. § 893.80(3) to give effect to the phrase "the amount
recoverable by any person" in the interest of avoiding rendering
part of the statute surplusage, and thus concluding that an
order for abatement is not covered by § 893.80(3) because
abatement does not entitle "any person" to "recover" any
amount); see also Scalia & Garner, supra ¶35, at 176 ("Because
legal drafters should not include words that have no effect,
courts avoid a reading that renders some words altogether
redundant.").
¶36 Moreover, when considering statutes, "[i]t is presumed
that the legislature acted with full knowledge of the existing
law, both the statute[s] and the court decision[s] interpreting
it." Kindy v. Hayes, 44 Wis. 2d 301, 314, 171 N.W.2d 324
(1969); see also Blazekovic v. City of Milwaukee, 225
Wis. 2d 837, 845, 593 N.W.2d 809 (Ct. App. 1999) (stating that
an analysis of statutes "begins with the presumption that the
legislature knew the case law in existence" when it enacted the
statutes); Carol J.R. v. Cty. of Milwaukee, 196 Wis. 2d 882,
888, 540 N.W.2d 233 (Ct. App. 1995). As we interpret state
statutes and local ordinances the same way, there is no reason
to disrupt that presumption here.
4
No. 2016AP1525.akz
B
¶37 My analysis is driven by the plain meaning of the
language in the ordinances at issue. Specifically, certain
parts of the ordinances use the phrase "covered by the terms of
a collective bargaining agreement" and other parts use the
phrase "covered by a collective bargaining agreement." Instead
of ascertaining why this choice might have been made, the
majority quickly surmises that the language has no meaning and
was gratuitously added.
¶38 The majority starts its analysis at the finish line,
reading MCGO § 201.24(4.1)(2) in a manner that ascribes no
meaning to the phrase "by the terms of," thus rendering the
phrase functionally useless within subsection (4.1)(2). It
concludes that, "[r]egardless of what the County intended, the
plain meaning of 'covered by the terms' of a CBA includes only
those employees bound by a valid CBA," stating that it cannot
"imagine how an employee could be 'covered by the terms' of an
expired CBA that no longer binds its parties." Majority op.,
¶13. But, as will be demonstrated, such an interpretation
contradicts the plain text of the ordinance.1 By utilizing the
phrase "covered by the terms of," this section has broader
reach, in that it results in fewer people being able to claim
1
I note that Milwaukee County also raises significant
concerns regarding what it phrases as the duty to "maintain the
status quo about mandatory subjects of bargaining" and its
effect on the Milwaukee County General Ordinances. As I focus
on the plain meaning of MCGO § 201.24(4.1)(2) based upon the
ordinance's text, I will not further address Milwaukee County's
argument regarding the status quo obligation.
5
No. 2016AP1525.akz
Rule of 75 benefits because even though they are not "covered by
a collective bargaining agreement" then in existence, they may
still be "covered by the terms of a collective bargaining
agreement." If the drafters of the ordinance had intended to
include all, rather than exclude some, a much simpler provision
could have been drafted.
¶39 The at-issue ordinance determines eligibility for the
"Rule of 75," which provides eligible Milwaukee County employees
a full pension plan when an employee's age and years of service
equals or exceeds 75. Milwaukee Cty. Gen. Or.
§ 201.24(4.1)(2)(a) creates Rule of 75 eligibility for any
member who, on September 29, 2011, "is employed and is not
covered by the terms of a collective bargaining agreement, and
whose initial membership in the retirement system under section
201.24 began prior to January 1, 2006, and who retires on and
after September 1, 1993."2 MCGO § 201.24(4.1)(2)(a). Thus,
2 Milwaukee Cty. Gen. Or. § 201.24(4.1)(2) creates seven
groups of members who may be eligible for Rule of 75 pension
benefits, but only subsections (4.1)(2)(a) and (4.1)(2)(b) are
at issue here. The majority criticizes my purported failure to
address or explain the effect of MCGO § 201.24(4.1)(2)(f)–(g).
Subsections (4.1)(2)(f) and (4.1)(2)(g) did not appear in the
Milwaukee County General Ordinances until July of 2016——
approximately 20 months after this action was commenced.
However, subsections (4.1)(2)(f) and (4.1)(2)(g) merely state
that if an employee is covered by the terms of a CBA on
September 29, 2011, and is no longer represented by either of
the two enumerated unions at the date of retirement, the
employee is eligible for a Rule of 75 pension. See
§ 201.24(4.1)(2)(f)–(g). The subsections seem to ensure that
employees who fall within either subsection will have a pension
despite no longer being represented by either of the two
enumerated unions when they retire.
6
No. 2016AP1525.akz
§ 201.24(4.1)(2)(a) creates eligibility for any employee who:
(1) initially became a member of the retirement system before
January 1, 2006; (2) retires on or after September 1, 1993; and
(3) on September 29, 2011, was employed and was not covered by
the terms of a CBA.3
¶40 Subsection (4.1)(2)(b) creates eligibility for any
"member who, on September 29, 2011, is employed and is covered
by the terms of a collective bargaining agreement" with a few
unions, including Municipal Employe[e]s District Council 48,
"and whose initial membership date is prior to January 1, 1994."
MCGO § 201.24(4.1)(2)(b). Thus, under subsection (4.1)(2)(b),
Rule of 75 benefits are afforded to any member of DC-48 or other
enumerated union who: (1) initially became a member prior to
January 1, 1994; and (2) on September 29, 2011, was employed and
was covered by the terms of a CBA.4
¶41 The majority construes subsections (4.1)(2)(a) and
(4.1)(2)(b) in a vacuum to surmise that it creates two groups of
members: (1) those covered by an existing CBA with one of the
3 The remainder of subsection (4.1)(2)(a) limits eligibility
for certain employees, such as "any member eligible under
section 4.5," which addresses "deferred vested retirement," for
certain sheriffs or correctional officers. MCGO
§ 201.24(4.1)(2)(a). Such limitations are not relevant for our
purposes here.
4Like subsection (4.1)(2)(a), subsection (4.1)(2)(b) states
that it does not apply to "any member eligible under section
4.5." MCGO § 201.24(4.1)(2)(b).
7
No. 2016AP1525.akz
enumerated unions5; and (2) those not covered by an existing CBA.
Majority op. ¶13. The majority's construction is problematic,
because it looks no further to determine why the phrase "by the
terms of" was chosen when in the previous section it was not.
Perhaps it is used because members could still be covered by the
terms of a CBA no longer in effect. Since DC-48 members were
not actually covered by an existing CBA on September 29, 2011,
the majority creates, out of thin air, Rule of 75 eligibility
for DC-48 members (along with members of other unions specified
in subsection (4.1)(2)(b)) whose membership began after
January 1, 1994, but before January 1, 2006. By not accounting
for employees who might still be covered by the terms of an
expired CBA, the majority's interpretation of subsections
(4.1)(2)(a) and (4.1)(2)(b) results in Rule of 75 benefits being
afforded to more DC-48 members than called for under the
ordinance.6
¶42 The majority's construction of MCGO § 201.24(4.1)(2)
goes no further to determine whether the different language
might have meaning. Instead it conflates "covered by the terms
5
Subsections (4.1)(2)(c) through (4.1)(2)(g) of the
ordinance further define which members of specifically
enumerated unions, who were covered by the terms of a CBA on a
particular date, are eligible under the Rule of 75. See MCGO
§ 201.24(4.1)(2)(c)–(g).
6
While the cost to taxpayers cannot drive statutory
interpretation, the majority's misinterpretation is not a
distinction without a difference. Indeed, the majority's errant
construction of MCGO § 201.24(4.1)(2) would result in Milwaukee
County taxpayers providing an additional $6.8 million in
benefits.
8
No. 2016AP1525.akz
of a collective bargaining agreement" with "covered by a
collective bargaining agreement" and declares, without more,
that the Board of Supervisors included words that added nothing
of substance. See majority op., ¶24. In other words, the
majority begins its analysis with an assumption that the
legislative body did not mean what it said.
¶43 We most typically do not begin our analysis with an
assumption that mandates one conclusion without further
considering whether the words used might actually have meaning,
especially in the context of a provision that was drafted in
order to exclude certain people from Rule of 75 benefits. If
the Rule of 75 was intended to apply to all, this provision
would be unnecessary.
¶44 The majority dashes to interpret MCGO § 201.24(4.1)(2)
by ignoring key language of the text itself and the fact that
each phrase appears in surrounding provisions, for example, MCGO
§ 201.24(3.11). Under a proper understanding of the plain
meaning of § 201.24(4.1)(2), since DC-48 members were covered by
the terms of a CBA on September 29, 2011, they are eligible for
Rule of 75 benefits only if they were employed on September 29,
2011, and initially became members prior to January 1, 1994.
See MCGO § 201.24(4.1)(2)(b). This language has distinct
meaning as is demonstrated by its use elsewhere.
¶45 As noted previously, statutory interpretation requires
an evaluation of the context in which a statute appears, as
statutes are viewed not in isolation, but as part of a whole.
Kalal, 271 Wis. 2d 633, ¶46. Ordinance interpretation follows
9
No. 2016AP1525.akz
the same rules. Ozaukee Cty. Bd. of Adjustment, 152 Wis. 2d at
559. We thus must consider MCGO § 201.24(4.1)(2) "in relation
to the language of surrounding or closely-related [ordinances]."
Kalal, 271 Wis. 2d 633, ¶46. The context surrounding
§ 201.24(4.1)(2) provides further support for my plain meaning
interpretation. Crucially, in close proximity to the Rule of 75
ordinance, the Board of Supervisors directly distinguishes
between "covered by the terms of a collective bargaining
agreement" and "covered by a collective bargaining agreement" in
a section dealing with mandatory employee contributions of funds
to the retirement system. See MCGO § 201.24(3.11). Section
201.24(3.11)(1)(a) states, in pertinent part, "Each member of
the employes' retirement system . . . who is not covered by the
terms of a collective bargaining agreement, or who is covered by
a collective bargaining agreement that has adopted this
ordinance," § 201.24(3.11)(1)(a) (emphasis added), except those
contributing under a different subsection must contribute a
percentage of the member's compensation under § 201.24(3.11).7
The Board of Supervisors' choice to use differing language in
neighboring sections of the County Employee Retirement System
ordinances should be respected. Specifically, the subsection
(3.11)(1)(a) ordinance language "covered by the terms of a
collective bargaining agreement" and "covered by a collective
bargaining agreement" is a distinction with a difference. We
7
Subsections (3.11)(1)(c) and (3.11)(1)(d) operate
similarly to subsection (3.11)(1)(a). See MCGO
§ 201.24(3.11)(1)(c)–(d).
10
No. 2016AP1525.akz
must presume that the Board of Supervisors' decision to use
distinct language was purposeful. One of the two phrases would
be completely unnecessary if the other has the exact same
meaning, yet the two phrases coexist, in the disjunctive, and in
the same sentence, hence leading to the observation that they
must have different meanings. While the majority does not
assign any import to the different terms used in any section, it
ought to be concerned with whether these phrases were chosen
because they indeed each have a distinct, proscribed meaning.
If they were identical in meaning, subsection (3.11)(1)(a) would
not list them as alternatives to each other.
¶46 Subsection (3.11)(1)(a) means to include only employee
retirement system members who are "covered by a collective
bargaining agreement that has adopted this ordinance," or who
are "not covered by the terms of a collective bargaining
agreement." This begs the question: When would one be subject
"to the terms of" a CBA but not be covered by it? The answer to
this question: members may still be covered by the terms of a
CBA when the CBA has expired but the terms might continue to
apply.
¶47 Subsections (3.11)(1)(e) and (3.11)(1)(f) similarly
illustrate this linguistic distinction. Subsection (3.11)(1)(e)
applies to any member "who is covered by a collective bargaining
agreement." MCGO § 201.24(3.11)(1)(e) (emphasis added).
Subsection (3.11)(1)(f) applies to any member "who is covered by
the terms of a collective bargaining agreement."
§ 201.24(3.11)(1)(f) (emphasis added). Why again presume, as
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the majority does, that the Board of Supervisors' choice to
create these distinctions deserves no significance? There are
indeed categories of employees who may be covered by the terms
of a CBA but are not actually covered by a CBA.
¶48 Moreover, my interpretation of the plain meaning of
MCGO § 201.24(4.1)(2) is further supported by a review of other
parts of the ordinances, where the Board of Supervisors
exclusively uses the phrase "covered by a collective bargaining
agreement," without reference to "the terms of" any CBA. See
§ 201.24(2.18)(3)(a) (defining "[n]ormal retirement age" as 64
for a member (a) "who is not covered by a collective bargaining
agreement" at the time his employment terminates; (b) who is
"not an elected official" at the time his employment terminates;
and (c) "whose initial membership in the retirement system began
on or after January 1, 2010" (emphasis added)); MCGO
§ 203.2.6.f. (defining "[e]mploye" in part as "[t]hose employes
who are members of a collective bargaining unit covered by a
collective bargaining agreement which (as a result of good faith
bargaining between the county and representatives of such unit)
does not provide for their inclusion" (emphasis added)).
¶49 As a practical matter, the majority's interpretation
of MCGO § 201.24(4.1)(2) is further flawed, as it renders the
phrase "by the terms of" surplusage without consideration of how
collective bargaining works. Given the status quo requirement——
that even the parties agree has been and is controlling——key
terms of the CBA must remain in effect until a successor CBA is
negotiated and agreed to by the employer and the union. Might
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that be a reason for using the phrase "by the terms of"? Yes.
Simply stated, certain terms of a CBA may have significance even
after a CBA has expired. It is undisputed that on September 29,
2011, DC-48 employees were not actually covered by an existing
CBA, as the CBA expired in 2009 and no new CBA was executed.
Despite that, Milwaukee County was still required to maintain
the terms of DC-48's expired CBA regarding base wages. Thus,
terms of DC-48's expired CBA with Milwaukee County remained in
effect, and on September 29, 2011, DC-48 members were covered by
the terms of a CBA despite the fact that the CBA was expired.
The majority's reading of § 201.24(4.1)(2) fails to give any
consideration to this basic principle to which the parties even
agree.
¶50 Thus, these ordinances can indeed be interpreted to
give meaning to this language and with reason, draw a
distinction between members "covered by the terms of" a CBA and
members "covered by" a CBA. The majority claims that my
analysis "strays from the text of the ordinance while assigning
unwarranted import to the phrase 'the terms of'" in the CBA.
Majority op., ¶22. To the contrary, as I have shown, I adhere
to the text of the ordinance, reading MCGO § 201.24(4.1)(2)
completely and giving effect to each word in the ordinance.
¶51 In order for the majority's reading of MCGO
§ 201.24(4.1)(2) to pass muster, one must assume that the Board
of Supervisors' choice to sometimes use different, distinct, and
disjunctive provisions was haphazard and is entitled to no
consideration whatsoever. The majority fails to even attempt to
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reconcile how these choices might have meaning. Therein lies
the Achilles heel in the majority's reasoning.
¶52 Due to the majority's significant misinterpretation of
MCGO § 201.24(4.1)(2), I respectfully dissent from the majority
opinion.
¶53 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this dissent.
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