Solie v. Employee Trust Funds Board

JON E WILCOX, J.

(dissenting).

¶ 43. I respectfully dissent from the majority opinion. The dispositive issue in this case is whether the plaintiffs possessed "a credit" in the "retirement deposit fund" after they left teaching prior to the creation of the formula group, took separation benefits, and withdrew all of the money from their state retirement deposit fund accounts, such that they continued to be "members" of the State *642Teachers Retirement System (STRS) when the formula group was created in 1965. While the majority correctly sets forth the material facts and the history of the various teacher retirement programs, its analysis is nonetheless flawed. Specifically, I disagree with the majority's interpretation of our decision in Schmidt v. Wisconsin Employe Trust Funds Board, 153 Wis. 2d 35, 449 N.W.2d 268 (1990), and its definition of the words "fund" and "credit" in Wis. Stat. § 42.20(6r)(a) (1965).1

¶ 44. The facts relevant to this dispute are as follows: 1) Both plaintiffs were teachers and members of the combined group who took separation benefits prior to November 30, 1965; 2) Both teachers emptied their STRS accounts and signed combined group waivers upon departing from teaching; 3) Following the creation of the formula group in 1965, both teachers returned to teaching and were automatically enrolled in the STRS as formula group members; 4) Both teachers again took separation benefits in 1971, executing formula group waivers; and 5) Both teachers returned to teaching after 1973 as formula group members and thereafter retired. See majority op., ¶¶ 3-14.

¶ 45. The broad issue in this case is whether the teachers are entitled to "creditable service" under the Wisconsin Retirement System, Wis. Stat. § 40.02(17) (1981), for the time they taught prior to 1971. The answer to this question is dependent upon whether the teachers were correctly enrolled in the formula group plan upon their return to teaching after 1965.

¶ 46. If the plaintiffs were correctly enrolled as formula group members, then the waivers they signed in 1971 waived their right to any prior creditable *643service2 because formula group waivers constituted a "full and complete discharge and release of all right, interest or claim on the part of the member to state deposit accumulations and to any benefit arising under any provision of ss. 42.20 to 42.54." Wis. Stat. § 42.245(4) (emphasis added). In contrast, if the plaintiffs were not correctly enrolled in the formula group, then they continued as part of the combined group and signed combined group waivers in 1971. Combined group waivers did not waive prior creditable service3 because such waivers constituted merely "a full and complete discharge and release of all right, interest or claim on the part of such member to state deposit accumulations based on teaching service performed after June 30, 1957." Wis. Stat. § 42.242(5).

¶ 47. Whether the teachers were properly part of the formula group or combined group when they returned to teaching after 1965 is dependent upon the interaction of several statutes. Wisconsin Stat. § 42.244, governing the creation of the formula group, provided, in pertinent part:

(1) There is created as of September 11, 1965, as a part of the system a formula group, to be composed of: .... (c) any member who is a member of the system on September 11, 1965, but who is not eligible for an election under (a) or (b) herein, who within 90 days from the last day of the month in which he is first employed as a teacher in Wisconsin teaching after *644September 11, 1965, elects in accordance with this section to become a member of the formula group .... (d) any person who becomes a member of the system, after November 30, 1965....

As such, this case turns on whether the plaintiffs were "members" of the retirement system on November 30, 1965. If the plaintiffs were members of the STRS prior to their return, then they would have continued as combined group members unless they elected to join the formula group. In contrast, if the plaintiffs' memberships terminated after their departure, they became members of the STRS when they returned to teaching after November 30,1965, and were correctly enrolled in the formula group under § 42.244(l)(d).

¶ 48. Section 42.20(6r)(a) defined "member" as "a person who, as the result of having been engaged in Wisconsin teaching, has a credit in the retirement deposit fund . . . ." Therefore, this case boils down to the question of whether the plaintiffs possessed "a credit" in the retirement deposit fund on November 30, 1965, given that prior to that date, they left teaching, took separation benefits, depleted their retirement deposit fund accounts, and had not returned to teaching.

¶ 49. I would conclude that the plaintiffs ceased to be "members" of the STRS when they left teaching prior to November 30, 1965, took separation benefits, and withdrew all of the money in their retirement deposit fund accounts. The plaintiffs ceased to be "members" of the STRS at that time because they did not possess "a credit" in their retirement deposit fund accounts, as they withdrew all the money in said accounts.

¶ 50. Rather than focusing on the statutory definition of "member" and the meaning of "credit," the majority, relying principally on this court's decision in *645Schmidt, concludes that the plaintiffs were members of STRS because the combined group waivers they signed prior to November 30, 1965, did not terminate their STRS combined group membership "rights." Majority op., ¶¶ 33-36. This reasoning is flawed in several respects.

¶ 51. First, the plain language of § 42.20(6r)(a) defined "member" as "a person who, as the result of having been engaged in Wisconsin teaching, has a credit in the retirement deposit fund ... ." (Emphasis added.) Thus, in order to be a "member" of the STRS, under the plain language of the statute, a teacher must have possessed "a credit" in the retirement deposit fund. The statute did not equate membership with retained "rights." "Words that are defined in the statute are given the definition that the legislature has provided." Wis. Citizens Concerned for Cranes and Doves v. DNR, 2004 WI 40, ¶ 6, 270 Wis. 2d 318, 677 N.W.2d 612 (citing Beard v. Lee Enters., 225 Wis. 2d 1, 23, 591 N.W.2d 156 (1999)).4 Therefore, even assuming that the majority is correct that the plaintiffs retained "rights" in the retirement system after signing combined group waivers, majority op., ¶ 35, that fact is not germane to the question of whether they continued to be "members" of the system, as membership is defined solely in relation to the existence of "a credit" in the retirement deposit fund.

¶ 52. Second, the majority opinion misconstrues our decision in Schmidt. In Schmidt, the plaintiff left teaching in 1963, executed a combined group waiver, and returned to teaching in 1964. Schmidt, 153 Wis. 2d *646at 38. When the formula group was created in 1965, Schmidt elected to become a member of the formula group. Id. at 39. Thus, in Schmidt, there was no question as to which benefit group the teacher properly belonged or which type of waiver he executed. The sole issue in Schmidt was whether the plaintiffs prior years of teaching while in the combined group constituted "creditable service" under the formula group, given that he had previously taken a separation benefit and signed a combined group waiver. Id. at 43-44. As such, the Schmidt decision involved the interpretation of the language utilized in the combined group waiver under § 42.242(5), which required a teacher to waive "all right, interest or claim on the part of such member to state deposit accumulations ...." Id. at 44-45.

¶ 53. Thus, the Schmidt decision concerned the effect of this language and whether a teacher retained any rights after signing such a waiver. Unlike the present case, there was no question that the plaintiff in Schmidt was properly a member of the formula group. Because the plaintiff in Schmidt voluntarily elected to join the formula group after its creation, it did not matter whether he was a "member" of the STRS when the formula group was created. Schmidt simply did not address the definition of "member" or what it meant to have "a credit" in the retirement deposit fund.

¶ 54. However, when analyzing the effect of the combined group waiver, Schmidt explicitly stated that "years of teaching service" and "creditable service" were not synonymous with "state deposit accumulations":

Here, the terms "years of teaching service," and "creditable service" become synonymous as applied to ex-combined group members and are concerned only with time. In contrast, the term "state deposit accumulations," defined as "the deposit made by the state in the *647retirement deposit fund on behalf of any member," is clearly concerned only with money.

Id. at 46 (emphasis added). The court found it significant that a combined group waiver resulted merely in a loss of a member's right to "state deposit accumulations." Id. Therefore, the court concluded: "under the clear, plain language of sec. 42.242(5), Stats., we hold that Schmidt only waived his right to money which accumulated in his retirement fund through state deposits, nothing else. His years of [teaching] service remained on his record . . . ." Id. (emphasis added).

¶ 55. Therefore, under Schmidt, the plaintiffs in this case clearly retained their years of teaching service on their records after they signed combined group waivers. However, that fact does not resolve the present dispute. Schmidt simply did not address the dispositive issue in this case: whether years of teaching service on a teacher's record constitute "a credit" in the retirement deposit fund, such that a teacher continues to be a "member" after withdrawing all monies from said fund. Thus, the fact that the plaintiffs in this case signed combined group waivers prior to the creation of the formula group is simply not relevant to the resolution of this case. What is at issue is whether the plaintiffs here possessed "a credit" in the retirement deposit fund after they took separation benefits and withdrew all the money in their retirement deposit fund accounts.

¶ 56. While Schmidt did not directly address this issue, its rationale nonetheless undercuts the majority's conclusion that years of teaching experience on a teacher's record constitute "a credit" in the retirement deposit fund. See majority op., ¶ 36. Schmidt clearly drew a sharp distinction between "money which accumulated in [the plaintiffs] retirement fund," and "years *648of service [that] remained on his record." Schmidt, 153 Wis. 2d at 46. If "years of teaching service" or "creditable service" is part of the retirement fund, as the majority asserts, then the distinction Schmidt drew is meaningless and the rationale of Schmidt comes unraveled.

¶ 57. While Schmidt stated that when a combined group member made required deposits, "a year of teaching experience would be credited to that teacher within the retirement system," id. at 42 (emphasis added), it did not hold that years of teaching experience were "a credit" within the retirement deposit fund. Indeed, it specifically ruled that deposits in the fund were "clearly concerned only with money." Id. at 46. See also Wis. Stat. § 42.20(2)(a)-(d) (defining "deposits" in the fund solely in relation to monetary contributions).

¶ 58. The majority erroneously concludes that because "the legislature specifically granted teachers credit for their creditable serviceO" that "creditable service constitute^] a credit in the retirement deposit fund.. . ." Majority op., ¶ 36. The majority reasons that the retirement deposit fund is not comprised solely of money and includes "creditable service," even though it cannot point to any statute "regarding where a teacher's creditable service remains[.]" Majority op., ¶ 36. The majority's reasoning in this regard is in contravention of both common sense and the definition of the words "fund" and "credit."

¶ 59. The pertinent statutes do not define the terms "fund" or "credit." However, if these terms are accorded their common, ordinary meaning when read in the context in which they appear in chapter 42, it is clear that the retirement deposit "fund" is comprised solely of money and that a "credit" refers to a positive balance in a teacher's retirement deposit fund account. See Wis. Citizens Concerned for Cranes and Doves, 270 *649Wis. 2d 318, ¶ 6 (unless specifically defined, nontechnical words in a statute are accorded their common everyday meaning and are read in the context of the statute in which they appear) (citing Wis. Stat. § 990.01(1) (1999-2000)).

¶ 60. The ordinary definition of "fund" is "[a] sum of money or other resources set aside for a specific purpose: a pension fund." The American Heritage Dictionary of the English Language 735 (3d. ed. 1992) (emphasis in original). See also Black's Law Dictionary 682 (7th ed. 1999)(defining "fund" as "[a] sum of money or other liquid assets established for a specific purpose"). This definition of "fund" comports with the context in which the term is utilized in chapter 42. The retirement deposit fund is a sum of money set aside for teachers' retirement.

¶ 61. Chapter 42 indicates that the term "fund" is utilized in a financial context. Wisconsin Stat. § 42.33(1) provides, in pertinent part: "The state teachers retirement board shall at all times maintain assets: ... (b) In the 'Retirement Deposit Fund' equal to the liabilities for member deposits and for state deposits for members of the separate group and the combined group and interest accretions!)]" See also Wis. Stat. § 42.243(5)(c); Wis. Stat. § 42.243(6)(c); Wis. Stat. § 42.45(l)(d); Wis. Stat. § 42.46(1); Wis. Stat. § 42.475 (all describing a member's account in the state retirement fund being credited with member contributions, state deposits, and interest and discussing the withdrawal, payment, and maintenance of such monies).

¶ 62. In addition, Schmidt, 153 Wis. 2d at 46, explicitly stated that a teacher who signed a combined group waiver "only waived his right to money which accumulated in his retirement fund through state deposits." (Emphasis added.) Likewise, Wis. Admin. Code *650§ TR 4.01 (Sept., 1964) specifically distinguishes between "years of teaching experience" being "counted as within the system" and "required deposits" being "paid into the fund," by stating that years of teaching experience are not to be counted within the system until any required deposits plus interest are paid into the fund.

¶ 63. In short, the "retirement deposit fund" is a fund comprised of monetary deposits established for the purpose of teacher retirement.

¶ 64. Given that § 42.33(1) specifically states that the retirement deposit fund's assets are teacher deposits, state deposits, and accrued interest, the majority's conclusion that "it is reasonable to construe the retirement deposit fund as encompassing more than simply a lockbox for money[]" is entirely unfounded and anything but reasonable. Majority op., ¶ 36. The majority's conclusion that a repository of money earmarked for a particular purpose (a fund) can be comprised of something other than money is inexplicable in light of the statutory language. Notably, the majority cites to no statute, administrative rule, or case for the proposition that the "retirement deposit fund" may contain something other than money. It simply declares it to be so. Simply put, nowhere does chapter 42 speak of the retirement deposit fund being credited with, consisting of, or containing anything other than money.

¶ 65. Next, the majority compounds this error by concluding that creditable service constitutes "a credit" in the retirement deposit fund. Majority op., ¶ 36. The majority reasons that creditable service must be a " 'credit' in the retirement deposit fund" because "the legislature specifically granted teachers credit for creditable service." Id. This reasoning conflates the use of the word "credit" in its colloquial sense and its use in the statute in the accounting context. When used as a verb *651in its colloquial sense, "credit" means "[t]o ascribe to a person; attribute." The American Heritage Dictionary of the English Language 439 (3d. ed. 1992). This is the usage of "credit" in Schmidt, which stated: "If the teacher made the required deposit when due for each year of service as a teacher, then ... a year of teaching experience would be credited to that teacher within the retirement system." Schmidt, 153 Wis. 2d at 42 (emphasis added).

¶ 66. In contrast, the word "credit," when used as a noun in § 42.20(6r)(a) in relation to a sum of money, clearly means a "positive balance or amount remaining in a person's account." The American Heritage Dictionary of the English Language, 439 (3d. ed. 1992). See also Black's Law Dictionary 374 (7th ed. 1999) (defining "credit" as "[t]he availability of funds either from a financial institution or under a letter of credit" and "credit balance" as "[t]he status of an account when the sum of the credit entries exceeds the sum of the debit entries.").5

¶ 67. Given that the retirement deposit fund is a sum of money established for a particular purpose— teacher retirement — and possesses assets consisting of state deposits, member contributions, and accrued interest, a "credit" in the fund is plainly a positive account balance. Other provisions of chapter 42 clearly utilize the word "credit" or "credited" in its financial sense *652when discussing the retirement deposit fund. When used as a verb in the accounting or financial context, "credit" means "[t]o enter as a credit[,]" "[t]o make a credit entry in" an account, The American Heritage Dictionary of the English Language 439 (3d. ed. 1992), or "[t]o enter (as an amount) on the credit side of an account." Black's Law Dictionary 374 (7th ed. 1999).

¶ 68. For example, § 42.243(6)(c) states that "[cjapital gains and losses will be credited to the individual accounts in the retirement deposit fund only on amounts that have been on deposit for the full year ...." (Emphasis added.) Likewise, § 42.243(5)(c) states that "[ejarnings will be credited to the individual accounts in the retirement deposit fund only on amounts which have been on deposit for the full year . ..." (Emphasis added.) Finally, § 42.45(l)(d) states that "[ajll state deposits shall be credited as of June 30."

¶ 69. No statute speaks of years of teaching experience or creditable service being placed in individual accounts in the retirement deposit fund. Further, Schmidt itself stated that years of teaching experience "remained on [a teacher's] record[;] it did not say that years of teaching service or creditable service are placed in the fund. Schmidt, 153 Wis. 2d at 46 (emphasis added). See also id. at 42 (noting that years of teaching service are credited "within the retirement system [,]" not the fund)(emphasis added). Thus, while years of teaching service remain on a teacher's record and are credited or attributed to a teacher under the retirement system, Schmidt, 153 Wis. 2d at 42, 46, years of teaching experience do not themselves constitute "a credit in the retirement deposit fund. . . ." Wis. Stat. § 42.20(6r)(a) (emphasis added).

*653¶ 70. The majority cannot cite a single provision of chapter 42 that speaks of years of teaching experience or creditable service being placed in the retirement deposit fund or as constituting a credit within the retirement deposit fund. The majority essentially admits that no such statute exists. Majority op., ¶ 36. There is simply no authority to support the majority's contention that a teacher's years of teaching service are placed in the fund. Again, the majority, by judicial fiat, simply declares it to be .so. However, it is clear that a teacher's "years of service remainf] on his record . ..." Schmidt, 153 Wis. 2d at 46 (emphasis added).

¶ 71. As noted by the majority, creditable service is a variable utilized in the statutory formula for determining the retirement benefit of a teacher in the formula group. Majority op., ¶¶ 8, 15. In other words, the retirement benefit is a function of creditable service and other factors. Id. Creditable service is simply a means of calculating the ultimate retirement benefit. A year of teaching service under the combined group was "creditable" if the teacher made the required deposits into his retirement deposit account. Schmidt, 153 Wis. 2d at 42.

¶ 72. Thus, "creditable service" is a concept for determining which years of teaching experience "count" or are attributable to a teacher for purposes of the formula calculating the formula group retirement benefit. See id. at 39 (noting that creditable service is a "factor in computing the size of the retirement benefit"); id. at 44 (noting that not all years of teaching service are creditable for purposes of determining a retirement benefit). Creditable service is not itself a type of capital resource that can earn interest or be transferred, deposited, or withdrawn.

*654¶ 73. Given the nature of what creditable service is, if one accepts the proposition that creditable service truly is placed "in" the fund as a "credit," it necessarily follows that "creditable service" is never used up; it is never withdrawn from the account.6 This logical corollary has serious consequences and renders incomprehensible several of the statutory subcategories of "members."

¶ 74. An "active member" is defined as "a member who is not receiving an annuity ... and who has made a required deposit in the retirement deposit fund...." Wis. Stat. § 42.20(6r)(b)l. (emphasis added). Notably, the definition of active member incorporates the definition of "member," which requires "a credit" in the fund. Under a correct reading of the terms "fund" and "credit," an active member is a teacher who made required state deposits in the fund, see Schmidt, 153 Wis. 2d at 42, and has a "credit" or positive balance in the fund.

¶ 75. Similarly, an "inactive member" is "a member who is not receiving an annuity. . . who has not made a required deposit in the retirement deposit fund . . . ." Wis. Stat. § 42.20(6r)(b)2. Thus, an inactive member is someone who has a positive balance in his retirement deposit fund account (from past contributions, state contributions and/or interest) but who is not currently making required deposits. Finally, a "retired member" is "a member who is receiving an annuity .. . ." Wis. Stat. § 42.20(6r)(b)3. Thus, a retired member is a teacher who is receiving an annuity and possesses a positive balance in his retirement deposit fund account.

*655¶ 76. Because all three of the above classifications incorporate the definition of "member," the majority's reasoning results in the conclusion an active member, inactive member, or retired member need not have any money in their retirement deposit fund account. According to the majority, simply possessing a creditable service "credit" "in" the fund renders one a member of STRS.

¶ 77. Thus, under the majority's interpretation, a teacher would qualify as an "inactive member" if he had not made required contributions and had depleted all of the funds in his account, as long as he had earned "creditable service" at some point. He would qualify as "a member who is not receiving an annuity ... who has not made a required deposit in the retirement deposit fund . . .." Wis. Stat. § 42.20(6r)(b)2. (emphasis added).

¶ 78. Likewise, a teacher who signed a combined group waiver in 1965, took a separation benefit, depleted all of the funds in his account, and never returned to teaching would still be a "member" in 2005 because he would be entitled to his creditable service for his years of teaching as a combined group member and that creditable service, according to the majority, remains "in" the retirement deposit fund as "a credit." Thus, under the majority's interpretation, there is no difference between an "inactive member" and a teacher who has altogether left teaching.

¶ 79. Further, under the majority's interpretation, a member who retires, takes an annuity, and subsequently depletes all of the funds in his retirement deposit fund account would still be a "member" 30 years later and would meet the definition of "inactive member." Even though he is no longer receiving an annuity and has no money in his account (and thus not a "retired member"), and is not making required deposits *656(because he is no longer teaching), he would still have creditable service "in" his account, according to the majority's logic. Thus, under the majority's reasoning, anyone who was ever a Wisconsin teacher becomes a perpetual "inactive member" of STRS because his creditable service would always remain as a "credit" "in" his account.

¶ 80. Teachers across the state and the Department of Employee Trust Funds will certainly be surprised to learn that a teacher can never dissociate himself with the STRS so long as he earned creditable service at some point. The conclusion that any Wisconsin teacher who earned creditable service will become a perpetual "inactive member" is not simply a slippery slope argument or hyperbole; rather, it is a direct logical consequence given the statutory definitions and the majority's conclusion that creditable service constitutes "a credit" in the retirement deposit fund and remains in the fund after a teacher has withdrawn all monetary deposits from the fund.

¶ 81. Ultimately, the majority's conclusion in this case rests on flawed, circular reasoning. The majority reasons as follows: the plaintiffs are entitled to creditable service for their years of teaching prior to 1971 because the waivers they signed in 1971 were really combined group waivers (not waiving creditable service), as the plaintiffs were placed in the wrong retirement group when they returned to teaching after 1965; the plaintiffs should have continued as combined group members when they returned to teaching after 1965 because they were still "members" of STRS when the formula group was created; the plaintiffs were still "members" because they had a "credit" in the retirement deposit fund, despite the fact that they had no money in their accounts; the plaintiffs had a "credit" in the fund *657because they were entitled to creditable service. Thus, according to the majority, the plaintiffs are entitled to creditable service because they are entitled to creditable service.

¶ 82. In accordance with the plain language of the applicable statutes, the overall statutory scheme, and common sense, I would conclude that when the plaintiffs left teaching prior to the creation of the formula group, took separation benefits, and withdrew all of the money in their retirement deposit fund accounts, they ceased to be "members" of the STRS, as that term is defined in § 42.20(6r)(a). The plaintiffs were no longer "members" because they withdrew all of their money in their retirement accounts and therefore no longer possessed "a credit" in the retirement deposit "fund," which is comprised solely of money. Because they were no longer "members" after they depleted the funds in their accounts, they were correctly enrolled as formula group members when they returned to teaching after November 30, 1965, pursuant to § 42.244(l)(d). As they were correctly enrolled as formula group members when they returned to teaching, the waivers they signed in 1971 were formula group waivers, which constituted a "full and complete discharge and release of all right, interest or claim on the part of the member to state deposit accumulations and to any benefit arising under any provision of ss. 42.20 to 42.54." Wis. Stat. § 42.245(4) (emphasis added). Because the plaintiffs signed this broad formula group waiver, they waived the right to any creditable service that remained on their record for years of teaching prior to 1971. As such, the plaintiffs are not entitled to "creditable service" under the Wisconsin Retirement System, § 40.02(17) (1981), for the time they taught prior to 1971.

*658¶ 83. This conclusion is more than "plausible," majority op., ¶ 33; it is the only conclusion that is consistent with the pertinent statutory language, Schmidt, and common sense. While the result of the majority opinion grants the plaintiffs some extra retirement money, it simply cannot be justified based on the pertinent statutes. No amount of construction or interpretation can contort "a credit" in a "fund" into anything other than money.

¶ 84. For the foregoing reasons, I respectfully dissent.

¶ 85. I am authorized to state that Justice DAVID T. PROSSER JR. joins this dissent.

All references to the Wisconsin Statutes are to the 1965 version unless otherwise indicated.

See Schmidt v. Wis. Employe Trust Funds Bd., 153 Wis. 2d 35, 45-46, 449 N.W.2d 268 (1990)(concluding that the separate group waiver, which contained language similar to the formula group waiver, resulted in loss of years of service).

See Schmidt, 153 Wis. 2d at 46 (concluding that the language contained in the narrow combined group waiver did not waive a member's right to prior creditable service).

See also Bosco v. LIRC, 2004 WI 77, ¶ 23, 272 Wis. 2d 586, 681 N.W.2d 157 (accord); State ex rel. Kalal v. Cir. Ct. for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110 (accord).

The following example illustrates this difference in usage. A college student may receive credit for completed coursework or be credited with completing his major, but that does not mean he possesses a credit in his account at the bursar's office. The majority's holding is the equivalent of saying the student has a credit in his account at the bursar's office because he received credit for all the classes he took last semester. Neither makes any sense.

Indeed, the majority's holding that creditable service remains in the fund even if a teacher has withdrawn all of his money compels such a conclusion. Majority op., ¶¶ 35-36.