Juneau County v. Courthouse Employees, Local 1312

DYKMAN, P.J.

(dissenting). I differ with the majority because I conclude that the extrinsic aids relied upon by the trial court to determine the meaning of § 111.70(4)(cm)6., Stats., lead to only one conclusion: The legislature did not intend 1993 Wis. Act 16 to extend Qualified Economic Offer (QEO) procedure to municipal employees. The posture of this case is unusual, however, because Juneau County has not appealed the trial court's conclusion that it must continue to use the arbitration procedures of the statute. There is no longer any question about that conclusion. The only question is whether the meaning of the statute, after the relevant extrinsic aids are examined, is so clear that continued litigation as to the statute's meaning was frivolous.

*301Section 814.025, STATS., penalizes those who commence or continue a lawsuit that is without any reasonable basis in law or equity. Such an action is "frivolous," permitting the trial court to assess costs and attorney fees against the person bringing such a lawsuit. In the context of this case, once the trial court concluded that § 111.70(4)(cm)6., Stats., was ambiguous and that it must consider extrinsic aids to determine whether Juneau County could use QEO procedure, was Juneau County's continued assertion that it could use that procedure frivolous? To answer that question, we must examine the extrinsic aids upon which the trial court relied.

The first extrinsic aid that lends meaning to § 111.70(4)(cm)6., Stats., is the history of how 1995 Wis. Act 27 was passed. It began as Assembly Bill 150, the biennial budget bill. The Legislative Fiscal Bureau summary of Assembly Bill 150 as it pertained to collective bargaining states:

Repeal Sunset of Interest Arbitration Law for Non-protective Municipal Employes Including School District Professional Employes. Repeal the July 1, 1996, scheduled sunset of the interest arbitration procedures established under s. 111.70(4)(cm) of the statutes applicable to nonprotective municipal employes including school district professional employes. Nonprotective county employes would not be subject to these continuing procedures commencing July 1,1996.

Legislative Fiscal Bureau, Comparative Summary of Assembly Bill 150 (Oct. 1995).

*302But the Senate and then the full legislature changed Assembly Bill 150. The Legislative Fiscal Bureau summary shows:1

Delete provision which would have removed non-protective county employes, effective July 1, 1996, from coverage under the dispute resolution procedures of Subchapter IV of Chapter 111 of the statutes. [Because Engrossed AB 150 also repeals the July 1, 1996, scheduled sunset of the interest arbitration procedures under s. 111.70(4)(cm) of the statutes, this change would result in nonprotective county employes continuing to be subject to that law on and after July 1, 1996 . . . .]

Legislative Fiscal Bureau, Senate Republican Caucus Amendment: Modifications to Recommendations of the Assembly (June 27,1995) (brackets in original).

I find it persuasive that in 1995, the Assembly wanted to discontinue interest arbitration for county employees, but reached a compromise with the Senate that left interest arbitration intact for them. "Adoption of an amendment is evidence that the legislature intends to change the provisions of the original bill." 2A Norman J. Singer, Sutherland Statutory Construction § 48.18, at 369 (5th ed. 1992). I do not believe that the 1995 Assembly would have attempted to repeal interest arbitration for municipal employees had it already done so two years earlier.

*303The Governor concluded that 1995 Wis. Act 27 did not change the law requiring counties to arbitrate disputes with their employees. His veto message included the following:

Although I support a sunset of [the mediation-arbitration law for counties], I am placed in the unfortunate position of not being able to veto its repeal without also vetoing the repeal of the sunset of the qualified economic offer (QEO) provisions of the mediation-arbitration law that currently apply to schools. I believe maintaining the QEO provisions for schools is critical to ensuring that schools can control spending. However, since the mediation-arbitration law will still apply to counties, it will continue to be difficult for them to manage their employe compensation costs. ... I strongly encourage the Legislature to enact meaningful mediation-arbitration reform for counties.

(Emphasis added.) I do not believe that the Governor would have concluded that interest arbitration still applied to counties if the legislature had repealed it two years earlier.

Many of Wisconsin's counties have formed an association to advance their interests. The Executive Director of the Wisconsin Counties Association sent an advance memorandum to the members of the association on July 28,1995. In his memorandum, he outlined the provisions of the 1995-97 biennial budget that he felt were of importance to Wisconsin's counties:

First, the Governor signed into law the binding arbitration provisions inserted into the budget by the Senate. Essentially, these provisions eliminate the sunset of binding arbitration .... The practical effect of the budget is that binding arbitration will *304continue in its present form in relation to county contracts unless the Legislature takes some future action.

(Emphasis added.) I do not believe that the counties' representatives would tell them that interest arbitration was still effective if the legislature had repealed it two years earlier.

The legislature has not exempted declaratory judgment actions from the requirements of § 814.025, Stats. When it becomes apparent that a lawsuit seeking a declaratory judgment has no reasonable chance of success, a litigant and the litigant's attorney must agree that the law be declared contrary to their original request or risk the imposition of § 814.025 fees and costs.

This lawsuit was not frivolous when Juneau County began it. A reasonable person could begin this lawsuit and assert that § 111.70(4)(cm)6., Stats., was clear and unambiguous. If a statute is clear and unambiguous, we are prohibited from looking beyond the statutory language to ascertain its meaning. State v. Brunette, 212 Wis. 2d 139, 141, 567 N.W.2d 647, 649 (Ct. App. 1997). Although an allegation that § 111.70(4)(cm)6. is clear and unambiguous would be a stretch, the various views on what is clear and unambiguous make it difficult to say that such an assertion is without any support whatsoever. However, once the trial court determined that the statute was ambiguous and the extrinsic aids I have quoted were available to help determine whether 1993 Wis. Act 16 had repealed interest arbitration for county employees, continued assertion that it had done so was frivolous. Thus, § 814.025, STATS., applied, and Juneau County was responsible for the defendants' attorneys' fees from that time on. I would therefore also affirm the trial *305court on the defendants' cross-appeal in which they assert that they are entitled to attorneys' fees from the commencement of the action.

Courts have accepted Legislative Fiscal Bureau memo-randa as evidence of legislative intent. See, e.g., In re Brandon S.S., 179 Wis. 2d 114, 153 n.36, 507 N.W.2d 94, 108-09 (1993); Ball v. District No. 4, Area Bd., 117 Wis. 2d 529, 543, 345 N.W.2d 389, 396 (1984); Ball v. District No. 4, Area Bd., 115 Wis. 2d 555, 567, 341 N.W.2d 707, 714 (Ct. App. 1983), rev'd on other grounds, 117 Wis. 2d 529, 345 N.W.2d 389 (1984).