Bruno v. Milwaukee County

ANN WALSH BRADLEY, J.

¶ 30. (concurring). I write separately to express my disagreement with the majority opinion's reliance on the plain meaning canon to interpret this Milwaukee County ordinance. I find the ordinance to be ambiguous. Nevertheless, I concur in the majority's result because I find it to be the more reasonable interpretation in light of the language and purpose of the ordinance.

¶ 31. The majority begins and ends its analysis by relying on the plain meaning maxim of statutory/ ordinance construction: "if the plain meaning of the [ordinance] is clear, a court need not look to rules of statutory construction or other extrinsic aids." Majority op., ¶¶ 7,16. What the majority fails to acknowledge in this cursory approach is another oft-quoted maxim of statutory/ordinance interpretation: a statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 222, 550 N.W.2d 96 (1996); Ervin v. City of Kenosha, 159 Wis. 2d 464, 472, 464 N.W.2d 654 (1991); State v. Caldwell, 154 Wis. 2d 683, 687, 454 N.W.2d 13 (Ct. App. 1990).

¶ 32. Here, the circuit court and all three judges of the court of appeals, examining the same language, also found the meaning of this ordinance to be "plain" —but came to the opposite interpretation of what the *650majority today deems to be "plain." If judges and courts are considered reasonably well-informed persons, then under this latter rule of construction when they differ about an ordinance's "plain" meaning, the ordinance should generally be considered ambiguous. The tug of war between courts over opposite plain meaning constructions undermines the integrity of the appellate process.

¶ 33. Our task is to discern the intent of the legislature. Here, I find the language of the ordinance to be ambiguous, not only because of the opposite plain meaning interpretations but also because I conclude that both interpretations are reasonable.

¶ 34. The phrase in the ordinance that is the subject of interpretation is: "shall apply to all retirees who retire from the county." The circuit court and the judges of the court of appeals reasonably interpreted it to mean that it applies to members who leave county service and begin immediately drawing pension payments. The majority correctly notes that such an interpretation adds words to the definition of "retirement."

¶ 35. The majority's interpretation, however, has its own problems. The majority sets forth the phrase in question, "shall apply to all retirees who retire from the county," but then only focuses on the second part of the phrase. Since this is a county retirement plan, the word "retirees" implicitly means that it applies to those who retire from the county. Thus, the additional words "from the county" is unexplained surplusage. When an ordinance is redundant or contains surplusage, it is not "clear and unambiguous."

¶ 36. The majority explains away its construction which incorporates surplusage as serving merely to reinforce its meaning rather than creating any ambiguity. Majority op., ¶ 24. One could argue that its con*651struction which in essence reads "retired from the county from the county" is not reasonable. I, however, do not advance that position.

¶ 37. The majority's effort to explain away the surplusage is undermined by the fact that the "from the county" phrase was not included in parallel language within the very same section. The parallel language describes the military service credit eligibility of post-1985 retirees rather than the pre-1985 retirees at issue before us. The section reads:

The provisions of this section shall apply to all retirees who retired between July 1,1985 and January 26,1989 and to retirees who retired after January 26, 1989 and were not represented by a collective bargaining unit immediately prior to their retirement.
Effective solely with respect to pension payments payable on and after January 1,1997, the provisions of the preceding paragraph shall apply to all retirees who retired from the county before July 1, 1985.

M.C.G.O. § 201.24(2.10). It is unclear why the County Board would find it necessary to reinforce the meaning of this language by adding "from the county" in one instance and not the other. A reasonable inference is that the County Board intended that its selective use of the phrase have some meaningful effect. The majority's opinion fails to acknowledge or explain this inconsistent treatment.

¶ 38. Nevertheless, I find each interpretation to be reasonable, but not without its own problems. One interpretation is burdened with the need to add a few words for clarity and the other suffers from the need to delete a few words for clarity.

*652¶ 39. Although I conclude that the ordinance is ambiguous, this does not mean that the language of the ordinance does not favor one interpretation over the other. For the reasons set forth in the majority opinion, I agree that the language of the ordinance supports the petitioners' interpretation more strongly than the county's interpretation.

¶ 40. In addition, given the obvious purpose of the ordinance to recognize the valuable military service provided by county employees, there is no apparent reason why the county board would single out and exclude deferred vested pensioners from this recognition. These factors lead to the conclusion that the ordinance was intended to make the petitioners eligible for the military service credit. Accordingly, I concur.

¶ 41. I am authorized to state that SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE, joins this concurrence.