from an order of the circuit court for Milwaukee County: No.
2015CV786 DAVID A. HANSHER, Judge.
Kessler, Brennan and Brash, JJ.
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) 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
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 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
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.
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. 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.
"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.
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.
A Sheriff's Constitutional and Statutory
"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).
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.
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., ¶¶52-57.
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 ...