Milwaukee District Council 48 v. Milwaukee County

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Justia Opinion Summary

The Supreme Court interpreted Milwaukee County General Ordinance 201.24(4.1) to mean that employees not covered by the terms of a collective bargaining agreement (CBA) were entitled to the benefit of the “Rule of 75” if they were hired prior to January 1, 2006, and that, on September 29, 2011, the operative date of the County’s amended ordinance, members of Milwaukee District Council 48 of the American Federation of State, County and Municipal Employees (DC-48) were not covered by the terms of a CBA because the last CBA had expired.

At issue were pension benefits, known as the Rule of 75, to certain DC-48 members. The County enacted an ordinance granting Rule of 75 benefits to all employees “not covered by the terms of a [CBA]” as long as those employees were hired before 2006. DC-48 sought a declaratory judgment that its members were not covered by the terms of a CBA and that all members hired prior to January 1, 2006 were eligible for the Rule of 75. The circuit court concluded that DC-48 members were not covered by the terms of a CBA on September 29, 2011. The Supreme Court affirmed, holding that, pursuant to an active CBA, the members of DC-48 were not “covered by the terms” of a CBA on September 29, 2011.

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2019 WI 24 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2016AP1525 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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 24, 2018 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee Stephanie Rothstein JUSTICES: CONCURRED: DISSENTED: March 19, 2019 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, FILED Plaintiff-Respondent, 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. ¶1 deny REBECCA GRASSL BRADLEY, J. what it characterizes as Affirmed. Milwaukee County seeks to "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 Milwaukee the Employees' (ERS), and Retirement the System County's of intention the to County grant of 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 represented employees. of 75 eligibility for non- 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 ordinance's text rather than the rewrite plain it to meaning reflect of the what the County may have intended, we reject the County's request and affirm the court of appeals. I. ¶2 with its Milwaukee employees, County BACKGROUND has a including history DC-48 of negotiating members. In 1991, County created the Rule of 75, which it amended in 1993. CBAs the The County's amended ordinance addressed Rule of 75 eligibility for employees "not covered by the terms" of a CBA. Cty. Gen. Or. § 201.24(4.1) (1993). reads: 2 The See Milwaukee amended ordinance 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. iteration of Gen. the Or. § 201.24(4.1) ordinance, the Rule (1993). of 75 Under applied to this each employee "not covered by the terms of a collective bargaining agreement" if the employee's age added equaled 75, regardless of the hire date. ¶3 to years of service Id. 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 Ordinance In 2005, the County amended Milwaukee County General § 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 1 a cutoff date for "Member" means any member of the County's retirement system. All County employees become members of the retirement system when hired. 3 No. 2016AP1525 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 another three months. was DC-48 agreed to extend the CBA for Although a tentative successor agreement reached, the County Board members never ratified it. never approved it and DC-48's DC-48's CBA expired on March 31, 2009, and no subsequent CBA was ever consummated. ¶6 Act 10, Effective June 2011, the legislature enacted 2011 Wis. which limited collective municipal employees" to base wages.2 bargaining made by representative of Act 10, County DC-48's general "general See 2011 Wis. Act 10; see also Wis. Stat. § 111.70(1)(a) (2011-12).3 changes for As a result of other certification employees was as a eventually revoked in January 2012. ¶7 amended After the Milwaukee enactment County of General Act 10, Ordinance the County again § 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 2 It is employees. undisputed DC-48 members 3 are general municipal All 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." (emphasis added). Id. 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. the September 29, 2011 trigger DC-48 argued that, as of 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 in 6 expired 2009; therefore, DC-48 members The Honorable Stephanie G. Rothstein presiding. 6 were not 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. ¶10 the DISCUSSION Although the legislative changes made by Act 10 and 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. ¶11 This ordinance, issue which is Standard of Review involves a question the of interpretation law we review of de an 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. Milwaukee N.W.2d 102. Cty., 2014 WI "[S]tatutory 130, ¶17, 359 interpretation 7 Stoker v. Wis. 2d 347, 'begins with 857 the No. language of the statute.'" 2016AP1525 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. language "its common, ordinary, Id. and We give statutory accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." and structure are also important to Id. meaning. Context 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 to surrounding avoid or absurd closely-related statutes; and reasonably, 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." source omitted). not "consult If the language is unambiguous, then we need extrinsic legislative history." sources of interpretation, such as Id. B. ¶12 Id. (quoted Analysis 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 reduced CBA the expired. scope of The County collective acknowledges bargaining, but that Act 10 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 contends DC-48 expired CBA. ¶13 September 29, members 2011. were As a "covered by result, the the terms" County of the We disagree. 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. classes of employees: The ordinance creates two (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 § 201.24(4.1)(2)(a)-(b). Milwaukee Regardless of Cty. what Gen. the Or. 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. CBA has expired, then, absent some other consideration, If a its terms no longer cover the parties. ¶14 faith The County's invocation of the duty to bargain in good and maintain the status quo does not interpretation of the plain text of the ordinance. alter our 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, conditions of employment." hours, and other Court held a and NLRB v. Katz, 369 U.S. 736, 742-43 (1962) (citation and quotation marks omitted). Supreme terms refusal to negotiate In Katz, the over mandatory subjects of collective bargaining violated the statutory duty to 9 No. negotiate in unilateral good faith. change in Id. Accordingly, conditions of "an 2016AP1525 employer's 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 654, 523 table"); N.W.2d 172 Jefferson (Ct. Cty. App. v. 1994) WERC, 187 (explaining Wis. 2d 647, 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 refuse to (3)(a)4. practice bargain for a municipal collectively." Wis. employer . . . [t]o Stat. § 111.70(1)(a), 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 however, The obligation to maintain the status quo does not, support the County's argument. The status quo obligation arises statutorily, as recognized in our case law; it does not arise § 111.70(1)(a), from (3)(a); Wis. 2d at 677-80. the St. expired Croix CBA. Falls See Sch. Wis. Dist., Stat. 186 The parties agree the last CBA expired in March 2009, and no successor agreement was reached. Because no contractual 2011, obligations existed 8 on September 29, the 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 negotiations, maintain with the status contractual quo during obligations that contract no longer existed after the CBA expired, insisting that these statutory obligations Milwaukee dissent mean County neglects that "terms remained to in explain of effect." how resuscitating a defunct contract. none of its terms survive DC-48's and a expired Dissent, statute is CBA ¶49. capable with The of Expiration of the CBA means 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 ordinance results in meaningless surplusage. This concern is misplaced. us to read legislative reading of the Dissent, ¶¶31, 49. The canon against surplusage guides language 9 "where possible to give 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: Legal Texts 176 (2012) ("Because The Interpretation of legal drafters should not include words that have no effect, courts avoid a reading that renders some interpretation, different functions. words both categories altogether paragraphs of redundant.").10 (2)(a) employees and and (2)(b) perform Under operate our on different See Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a)-(b). Paragraph (2)(a) provides an eligibility date of January 1, 2006 10 Even 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. for employees not covered by the terms of a CBA. Id. 2016AP1525 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 ordinance's fact plain intrinsic to is immaterial meaning. the text of The the to ascertaining concept ordinance; of the surplusage attempting to is 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 outside the statutory text"). extrinsic evidence County's goals. category no of are "interpretive resources It would be improper to consider whether the ordinance accomplished the It does not matter if the County created a employees filled when the County passed the ordinance; each paragraph of Milwaukee County General Ordinance § 201.24(4.1) bears a textual function. 14 Accordingly, there is No. no surplusage problem. 2016AP1525 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. 176 (explaining statutory that provision See Scalia, supra ¶17, at the canon typically is susceptible applies to two when a 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 potential first readings deciding of the that statute superfluous and one that does not)"). "covered by susceptible the terms" to the of a CBA County's there are (one that least renders two parts The meaning of the phrase is (or at plain, the and it dissent's) is not desired construction. ¶20 Disregarding the actual text of the ordinance, the County proffers an alternative definition of "covered by the terms" of a CBA. was merely meant expired to Citing a It claims that "covered by the terms" of a CBA "commonly distinguish CBAs) Local from 321, understood union those Int'l method employees who never of Fire 15 categorization" (including had Ass'n of worked Fighters those with under a CBA. v. City of 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." County wants "covered by the terms" In other words, the 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 expressed the ordinances § 201.24(4.1)(2). County pension Board's One "wish[]" provisions "related to the pension for" meant "wishes," the County to expand eligibility insists for the these clauses "codify found in the in such general municipal multiplier, retirement age and the Rule of 75[.]" Board's to previously collective bargaining agreements units employees of the normal Based on the County that it Rule could of 75 not to have 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, ¶¶4446 (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 16 closely-related statutes; and 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 statute's] Brookfield, Scalia, scope and 272 Wis. 1, supra appearing ambiguities, in determining ¶17, a text language operation." at 3-5, 218 statutory which dispositive such of 74 See Smith N.W.2d 770 (explaining prologue various bears," "cannot City be statements see while [a of also language "considered in meanings the permissible prefatory v. (1956); that may enlarge 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: (emphasis omitted)). Federal Courts and the Law 17 (1997) "[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: terms of admonishes Ordinance a collective that our bargaining reading § 201.24(4.1)(2) of renders 17 agreement." Milwaukee the phrase "covered by the The dissent County General "'by the terms No. of' . . . functionally Dissent, ¶38. useless within 2016AP1525 subsection (4.1)(2)." 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 General Specifically, Ordinance the dissent cites § 201.24(3.11)(1)(a), Milwaukee (1)(e), and County (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. 47. Dissent, ¶¶45- 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." analysis of § 201.24(4.1)(2), Dissent, ¶45. however, the Much like its 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." ¶17, at 177. 18 See Scalia, supra No. ¶24 2016AP1525 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[.]" 176; see also Arlington Cent. Sch. Scalia, supra ¶17, at 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 substance" and (quoting do include Scalia, supra words that ¶17, at add 176); nothing Kalal, of 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, reasonable reading of 918 a N.W.2d 78 statute, ("[S]ometimes one that the gives it most 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 however, from" of what "creat[ing] unforeseen is more nothing than We should be wary, meanings a or legal "stylistic effects 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 11 what it says there"). Surely the dissent, in endeavoring to find outcomedeterminative 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. Additionally, the dissent offers no elaboration 2016AP1525 on how interpretation leaves "by the terms" functionally useless. our 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."). Board's generally expressed "wishes" does not change our analysis. useful in ordinance, ascertaining they are part codify existing CBAs Although whereas clauses may be meaning not to The County in of the the face of ordinance an ambiguous and may override the unambiguous language of the ordinance itself. not 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 State ex rel. the intent Columbia of the Corp. 21 v. act." Town (citation Bd. of omitted)); Pac., 92 No. Wis. 2d 767, 779-780 (explaining enactment that and & n.10, 286 a statutory is "merely N.W.2d 130 preamble is (Ct. not 'instructive 2016AP1525 App. part of 1979) of the 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 statutory language." is expressed Wis. 2d 633, ¶44. in the Any indicia of the County's Kalal, 271 subjective purpose in enacting the ordinance beyond what is expressed in the text of the ordinance itself are meaning of the enacted text is plain. ¶28 attempt The County to support takes its Local irrelevant because the See id., ¶46. 321 out proffered of context "commonly in an 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. CBA did not "cover" currently in effect. certain The City argued the second employees Id., ¶14. 22 because it was not The court of appeals rejected No. this argument because under "ordinary principles 2016AP1525 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. disregards the distinction governing the affected between employees inoperative CBA in this case. In doing so, the County the in legally Local binding 321 and CBA the 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 Ordinance Finally, other § 201.24(4.1) portions rebut of Milwaukee the County's County General 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. (emphasis added)).12 2016AP1525 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 Association" Sheriffs and with "not Association," the Milwaukee represented and in by Deputy the paragraph Sheriffs Milwaukee (2)(g) it Deputy 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 172)." County Firefighters Association (IAFF Local "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. (1977) Kenosha ("Where phrases, . . . in presumed Cty., 81 the two Wis. 2d 309, legislature paragraphs to have intended the in two 12 318, uses the two same phrases 260 N.W.2d 515 different section, to have it is different 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. meanings."). 2016AP1525 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. phrases in different portions of the ordinance belies this construction. The use of both same section of an 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. ¶30 The meaning of § 201.24(4.1) is plain. CONCLUSION Milwaukee County General Ordinance 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 maintain expired base CBA, contract. wages the the at County the obligation may same have rates derives been obligated expressed from to under statutes, not the any 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 ordinance to give effect to the County's purported intentions. 25 the No. By the Court.——The decision affirmed. 26 of the court 2016AP1525 of appeals is No. ¶31 dissent ANNETTE from KINGSLAND the ZIEGLER, majority opinion J. 2016AP1525.akz I (dissenting). because it misconstrues Milwaukee County General Ordinances ("MCGO") §§ 201.24(4.1)(2) and 201.24(3.11)(1). out in the It errantly dispenses with the choices set 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 to be construed have meaning, the majority injects its conclusion that the Board of Supervisors did not mean what it said, relying on drafters . . . include Majority op., interpretation ¶24 the words notion that (internal stands in add "that nothing quotations opposition at of substance." omitted). to times basic Such rules an of construction, which traditionally strive to give effect to each word of an ordinance significant departure when possible. from a plain Due to the meaning majority's 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. evaluate whether the collective bargaining subsection, could language "covered agreement," indeed have by as the used meaning when 2016AP1525.akz terms of throughout compared a the 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, construction obligations and to then conclude existed on ignores that September traditional tools "[b]ecause no 29, pursuant 2011," of contractual 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, Hambleton Friedmann, v. (Ct. App. 1984)). 449 N.W.2d 47 117 (Ct. Wis. 2d 460, App. 1989) 462, 344 (citing N.W.2d 212 I start then by addressing longstanding and fundamental principles of statutory interpretation that should guide our analysis. ¶34 its In construing statutes, "[s]tatutory language is given 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. WI Circuit Court for Dane Wis. 2d 633, 681 N.W.2d 110. Cty., 2004 58, ¶45, 271 However, "statutory language is 2 No. 2016AP1525.akz interpreted in the context in which it is used; not in isolation but as part surrounding of or a whole; in relation closely-related to statutes; avoid absurd or unreasonable results." the and language of reasonably, to 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." ¶35 Id. Additionally and importantly, "[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." that this rule is not repeat themselves substance[.]" and Id. The majority correctly states absolute, do as "[s]ometimes include words that add drafters do nothing of 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 e.g., any word Metropolitan ¶¶41-42, 379 or phrase Assocs. Wis. 2d 141, unnecessarily v. City 905 superfluous. of Milwaukee, N.W.2d 784 See, 2018 WI (interpreting 4, 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 3 as distinguishing between No. 2016AP1525.akz contributions made by the City of Milwaukee and contractually protected could benefits not be of plan members considered a such that "benefit" "contributions" 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 order the for abatement statute surplusage, and thus abatement does not is not covered entitle "any concluding by § 893.80(3) person" to that an because "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." (1969); Kindy see v. Hayes, also 44 Wis. 2d 301, Blazekovic v. City 314, of 171 N.W.2d 324 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 language My analysis is driven by the plain in the ordinances at issue. meaning Specifically, of the certain parts of the ordinances use the phrase "covered by the terms of a collective bargaining agreement" and other parts phrase "covered by a collective bargaining agreement." of ascertaining why this choice might have been use the Instead made, the majority quickly surmises that the language has no meaning and was gratuitously added. ¶38 reading The majority starts its analysis at the finish line, 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." ¶13. But, as will be demonstrated, such contradicts the plain text of the ordinance.1 phrase "covered by the terms of," this an Majority op., interpretation By utilizing the 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 agreement." by the terms of a collective bargaining 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 § 201.24(4.1)(2)(a) member who, on 75. creates September Milwaukee Rule 29, of 75 2011, "is Cty. Gen. eligibility employed and Or. for any 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 2 § 201.24(4.1)(2)(a). Thus, 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. § 201.24(4.1)(2)(a) creates eligibility for any 2016AP1525.akz 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. 4 Like 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 January 1, 1994, but before January 1, 2006. began after 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 goes no The majority's construction of MCGO § 201.24(4.1)(2) further to might have meaning. determine whether the different language 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. of a collective collective bargaining bargaining agreement" agreement" and with 2016AP1525.akz "covered declares, by without a more, that the Board of Supervisors included words that added nothing of substance. majority begins See majority op., ¶24. its analysis with In other words, the 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. the same rules. 559. 2016AP1525.akz Ozaukee Cty. Bd. of Adjustment, 152 Wis. 2d at 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, Board between the "covered by of the Supervisors terms of directly a distinguishes 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. (3.11)(1)(a) ordinance language Specifically, the subsection "covered by the terms of a collective bargaining agreement" and "covered by a collective bargaining agreement" is a distinction with a difference. 7 We 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. must presume that the Board of Supervisors' decision distinct language was purposeful. be completely 2016AP1525.akz unnecessary if to use One of the two phrases would 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 agreement." by the terms of This begs the question: a collective When would one be subject "to the terms of" a CBA but not be covered by it? this question: bargaining The answer to 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 illustrate this linguistic distinction. (3.11)(1)(f) similarly 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 § 201.24(3.11)(1)(f) (emphasis added). 11 bargaining agreement." Why again presume, as No. the majority does, that the Board of 2016AP1525.akz Supervisors' choice create these distinctions deserves no significance? to 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. 12 Might No. 2016AP1525.akz 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 give Thus, these ordinances can indeed be interpreted to 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 text of the To the contrary, as I have shown, I adhere 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 consideration whatsoever. haphazard and is entitled to no The majority fails to even attempt to 13 No. reconcile how these choices might have meaning. 2016AP1525.akz 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. 14 No. 1 2016AP1525.akz

Primary Holding

The Supreme Court interpreted Milwaukee County General Ordinance 201.24(4.1) to mean that employees not covered by the terms of a collective bargaining agreement (CBA) were entitled to the benefit of the “Rule of 75” if they were hired prior to 2006, and that, on the operative date of the County’s amended ordinance in 2011, members of a union were not covered by the terms of a CBA.

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