Weston v. Wisconsin Department of Workforce Development

FINE, J.

¶ 33. (dissenting). The Majority, with understandable sympathy for those who can work but *445cannot find jobs, has ignored clear statutory language while claiming obeisance to it. The Majority has thus gutted legislation that authorizes welfare-like payments or assistance only to those who, for reasons beyond the control of the job marketplace, cannot find work. The legislature has appropriately reserved those welfare-like payments or assistance for those who are not employable because of either mental or physical impairments or lack of work-skills. The Majority in effect rewrites the statute to expand the roster of those eligible for work subsidized by Wisconsin's taxpayers (who, of course, pay into the tax maw, and do not receive tax subsidies to supplement their wages) to encompass everyone who cannot find work, even though they have the requisite skills and are thus employable. Accordingly, I respectfully dissent.

¶ 34. Unless there is a constitutional infirmity or lack of clarity, we take and apply statutes as they are written — bound by what" 'the lawgiver promulgated,'" not by what we would like the statute to say. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 44, 52, 271 Wis. 2d 633, 662, 667, 681 N.W.2d 110, 123-124, 126 (quoted source omitted). So, let's look at the statute.

¶ 35. First, the intent of the statute is clear: "Notwithstanding fulfillment of the eligibility requirements for any component of Wisconsin works, an individual is not entitled to services or benefits under Wisconsin works." Wis. Stat. § 49.141(4). Thus, the statute directs that a person seeking entry into the Wisconsin Works program be evaluated by a Wisconsin Works agency. Wis. Stat. § 49.147(lm)(a). The agency determines into which group the person should be placed — eligible education and training on the one *446hand, ibid,., or, on the other hand, either "unsubsidized employment or a trial job," § 49.l47(lm)(b).1

¶ 36. Second, contrary to the Majority's view, there is nothing in the statute that says that there must be a job opening for a Wisconsin Works participant before he or she can be placed in the "unsubsidized employment" cohort — persons who are employable because they have the requisite skills and facility to compete in the job market. The section from which the Majority hangs its bottom-line conclusion merely defines "unsubsidized employment": " 'Unsubsidized employment' means employment for which the Wisconsin works agency provides no wage subsidy to the employer including self-employment and entrepreneurial activities." Wis. Stat. § 49.147(l)(c).

¶ 37. To read the definition of "unsubsidized employment" in Wis. Stat. § 49.147(1)(c), as the Majority *447does, to preclude placement in the ''unsubsidized employment" cohort persons who have the requisite employment skills to compete in the job market (as both Yolanda Weston and Sherrieck Nelson concede they have, Majority, ¶¶ 6, 9, 27) but cannot find a job, inserts an implied clause in § 49.147(l)(c) akin to the italicized words I've appended to the end of what § 49.147(1)(c) currently says: " 'Unsubsidized employment' means employment for which the Wisconsin works agency provides no wage subsidy to the employer including self-employment and entrepreneurial activities, and if someone participating in the Wisconsin works program cannot find unsubsidized employment, the Department must supplement his or her wages or provide some other species of employment so the person can support him- or herself and dependents."

¶ 38. The Majority's reconstruction of Wis. Stat. § 49.147(1)(c) is contrary to what the legislature intended, as reflected by not only the language it used in crafting the Wisconsin Works program, but also by how the administrative agency the legislature entrusted with implementing Wisconsin Works has applied that language.

¶ 39. The real-world result of what the Majority does here will open the welfare floodgates to others in Wisconsin with employment skills but no job. See Wis. Stat. § 49.141(3) ("Any individual may apply for any component of Wisconsin works."). It will also make Wisconsin a "welfare magnet," which will attract unemployed from other states. See Shapiro v. Thompson, 394 U.S. 618 (1969) (states may not close their borders to those seeking more generous welfare benefits), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974). And, of course, that will add to an already heavy Wisconsin tax burden, making it less *448attractive for businesses to either come here or to stay here, which will, of course, mean more employable persons who cannot find jobs. And so it goes ... The pity of it is, is that the statute, if read properly, as the words and context require, would permit no such thing.

¶ 40. I would affirm.

Wisconsin Stat. § 49.147(1m) reads in full:

(a) A Wisconsin Works agency shall conduct an educational needs assessment of each individual who applies for a Wisconsin Works employment position. If the individual and the Wisconsin Works agency determine that the individual needs, or would benefit from, education or training activities, including a course of study meeting the standards established under s. 115.29 (4) (a) for the granting of a declaration of equivalency of high school graduation, and if the Wisconsin Works agency determines that the individual is eligible for a Wisconsin Works employment position, the Wisconsin Works agency shall include education or training activities in any employability plan developed for the individual.
(b) If the Wisconsin Works agency determines that the appropriate placement for an individual is in unsubsidized employment or a trial job and that the individual needs and wishes to pursue basic education, including a course of study meeting the standards established under s. 115.29 (4) (a) for the granting of a declaration of equivalency of high school graduation, the Wisconsin Works agency shall pay for the basic education services identified in the employability plan developed for the individual.