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Milwaukee Deputy Sheriffs' Association v. Milwaukee County

Court of Appeals of Wisconsin, District I

June 1, 2016

Milwaukee Deputy Sheriffs' Association, Plaintiff,
Milwaukee County, Defendant-Respondent. David A. Clarke, Jr., Sheriff of Milwaukee County, Plaintiff-Appellant,

         APPEAL from an order of the circuit court for Milwaukee County: No. 2015CV786 DAVID A. HANSHER, Judge.

          Before Kessler, Brennan and Brash, JJ.

          BRASH, J.

         ¶1 Sheriff David A. Clarke, Jr. appeals an order granting Milwaukee County's motion to dismiss. Sheriff Clarke argues that the circuit court erred in dismissing his claim on the grounds that he failed to establish that he has a legal basis for the relief he sought. Specifically, Sheriff Clarke argues that he is entitled to relief on the grounds that: (1) the County's 2015 budget is arbitrary and unreasonable because it prevented him from fulfilling his constitutional and statutory duties; (2) the hiring and appointment of deputy sheriffs is a constitutionally protected power of the sheriff; and (3) Wis.Stat. § 59.26(2) (2013-14)[1] gives him the authority to appoint as many law enforcement officers as he considers necessary to fulfill his constitutional and statutory duties. We disagree and affirm.


         ¶2 In his 2015 requested budget, Sheriff Clarke asked the County for funding for an additional 119 deputy sheriff positions and an additional fifty-eight correction officer positions. The County's 2015 Budget only authorized an additional seventeen deputy sheriff positions. In response, on February 2, 2015, the Milwaukee Deputy Sheriffs Association[2] and Sheriff Clarke jointly filed a complaint against the County seeking declaratory and injunctive relief and a writ of mandamus. All claims in the complaint related to the number of new deputy sheriff positions created by the 2015 budget. Specifically, Sheriff Clarke sought a declaration that the 2015 budget was arbitrary and unreasonable, that the 2015 budget created unsafe and unreasonable working conditions, and that the 2015 budget prevented him from fulfilling his constitutional and statutory duties. Ultimately, Sheriff Clarke sought relief in the form of an order requiring the addition of ten deputy sheriff sergeants, seven correctional officer lieutenants, seventy-five deputy sheriffs, and forty-three correctional officers.

         ¶3 On February 23, 2015, the County filed a motion to dismiss all claims. The County argued that Sheriff Clarke's complaint should be dismissed because he failed to allege sufficient facts to support his claims. The County also argued that the relief Sheriff Clarke sought was barred by the separation of powers doctrine.

         ¶4 On July 1, 2015, the circuit court issued a written decision granting the County's motion to dismiss Sheriff Clarke's claims. The circuit court made it clear that it did not base its decision on whether the action was justiciable, as the County never raised any justiciability issues.[3] Instead, the circuit court concluded that Sheriff Clarke did not plead sufficient facts showing that he was entitled to the relief he sought. On July 13, 2015, the circuit court entered its final order dismissing Sheriff Clarke's claims with prejudice. This appeal follows.


         ¶5 "A motion to dismiss for failure to state a claim 'tests the legal sufficiency of the complaint.'" Hornback v. Archdiocese of Milwaukee, 2008 WI 98, ¶13, 313 Wis.2d 294, 752 N.W.2d 862 (citation and one set of quotation marks omitted). We liberally construe pleadings to achieve substantial justice between the parties. See Strid v. Converse, 111 Wis.2d 418, 422, 331 N.W.2d 350 (1983); see also Wis. Stat. § 802.02(6). To that end, we accept as true all well-pleaded facts in a complaint, as well as the reasonable inferences therefrom. See DeBruin v. St. Patrick Congregation, 2012 WI 94, ¶11, 343 Wis.2d 83, 816 N.W.2d 878. Factual allegations in a complaint, however, must be "'more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.'" Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶25, 356 Wis.2d 665, 849 N.W.2d 693 (citation omitted). "[I]f it appears to a certainty that no relief can be granted under any set of facts that the plaintiff can prove in support of her allegations[, ]" we will dismiss the complaint. See Strid, 111 Wis.2d at 422. Whether a complaint states a claim upon which relief can be granted is a question of law that we review de novo. See Data Key Partners, 356 Wis.2d 665, ¶17.

         ¶6 At its core, Sheriff Clarke's argument is that the County's 2015 budget did not provide sufficient funds for him to hire the number of law enforcement officers that he considers necessary for him to fulfill his constitutional and statutory duties. As such, Sheriff Clarke argues that the County's 2015 budget is arbitrary and unreasonable. Sheriff Clarke further argues that, because the County's budget is arbitrary and unreasonable, he is entitled to a writ of mandamus requiring the County Board of Supervisors and the County Executive to authorize and create additional deputy sheriff positions, and for injunctive relief enjoining the County from preventing the hiring of additional deputy sheriffs. We begin with a discussion of the scope of a sheriff's constitutional and statutory powers.

         I. A Sheriff's Constitutional and Statutory Powers.

         a. Constitutional Powers.

         ¶7 "The Wisconsin Constitution establishes the office of sheriff … [but] does not delineate the powers, rights, and duties of the office of sheriff." Kocken v. Wisconsin Council 40, AFSCME, AFL-CIO, 2007 WI 72, ¶¶31-33, 301 Wis.2d 266, 732 N.W.2d 828 (some formatting altered). Therefore, we look to case law for guidance. See Milwaukee Deputy Sheriff's Ass'n v. Clarke, 2009 WI App. 123, ¶9, 320 Wis.2d 486, 772 N.W.2d 216. Initially, a sheriff's constitutional powers were those which were part of the nature of the office of the sheriff at common law when the constitution was adopted. See State ex rel. Kennedy v. Brunst, 26 Wis. 412, 414-15 (1870). Later cases, however, narrowed a sheriff's constitutional powers to only "those immemorial principal and important duties that characterized and distinguished the office." State ex rel. Milwaukee Cnty. v. Buech, 171 Wis. 474, 482, 177 N.W. 781 (1920).

         ¶8 In Heitkemper v. Wirsing, 194 Wis.2d 182, 533 N.W.2d 770 (1995), the Wisconsin Supreme Court "rejected any interpretations of Brunst which tried to include within the constitutionally protected functions of the sheriff all powers held by the sheriff at the common law." Heitkemper, 194 Wis.2d at 189. "If that were true, a constitutional amendment would be necessary in order to change the duties of sheriffs in the slightest degree." Buech, 171 Wis. at 482. Therefore, a sheriff's powers are constitutionally protected only if they are "immemorial, principal, and important duties … that are peculiar to the office of sheriff and that characterize and distinguish the office." Kocken, 301 Wis.2d 266, ¶39.

         ¶9 We recognize the following powers of the sheriff as constitutionally protected: the operation of the jail, attendance on the courts, maintaining law and order, and preserving the peace. See id., ΒΆΒΆ52-57. Even if a duty is related to one of these powers, however, that duty may still be regulated if it is a "nondistinctive, mundane and commonplace[, ] internal management and ...

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