Milwaukee Police Association and Michael Crivello, Plaintiffs-Appellants-Petitioners,
City of Milwaukee, Defendant-Respondent. Milwaukee Professional Fire Fighters Association, Local 215 and David R. Seager, Jr., Intervenors-Plaintiffs-Co-Appellants-Petitioners,
ARGUMENT: November 14, 2017
Circuit Court Milwaukee County, L.C. No. 2014CV8688 Timothy
G. Dugan Judge
OF A DECISION OF THE COURT OF APPEALS Reported at 375 Wis.2d
326, 897 N.W.2d 67
the plaintiffs-appellants-petitioners, there were briefs
filed by Jonathan Cermele and Cermele & Matthews, S.C.,
Milwaukee. There was an oral argument by Jonathan Cermele.
the intervenors-plaintiffs-co-appellants-petitioners, there
were briefs filed by Christopher J. MacGillis, Sean E. Lees,
and MacGillis Wiemer, LLC, Wauwatosa. There was an oral
argument by Christopher J. MacGillis.
the defendant-respondent, there was a brief filed by Stuart
S. Mukamal, assistant city attorney; Grant F. Langley, city
attorney; and Miriam R. Horwitz, deputy city attorney. There
was an oral argument by Stuart S. Mukamal.
PATIENCE DRAKE ROGGENSACK, C.J.
When the Employee Retirement System (ERS) was created for the
City of Milwaukee (the City) in 1937, the State granted each
employee-member of the ERS the right to vote for the election
of three employees to serve on the ERS Annuity and Pension
Board (the Board) comprised of seven members. In 1947, the
State granted all first class cities the opportunity to
manage the ERS pursuant to the exercise of home rule powers.
However, the State also protected individual rights of those
persons who were members of an ERS because the State
precluded amendment or alteration that modified "the
annuities, benefits or other rights of any persons who are
members of the system prior to the effective date of such
amendment." § 31(1), ch. 441, Laws of 1947.
In 1967, the City exercised its home rule over the ERS,
consistent with the State's protections of individual
member rights. However, in 2013, the City amended its charter
ordinance and reduced the voting rights of employees. Each
employee-member was permitted to vote for only one employee
to serve on the Board, rather than three, and employees could
no longer vote for the employees of their choice. The City
also gave the mayor three appointments, thereby increasing
the size of the Board to eleven members.
Milwaukee Police Association (MPA) members and Milwaukee
Professional Fire Fighters Association (MPFFA) members
challenged the 2013 amendment, saying that it altered the
"other rights" of employee-members of the ERS who
were members prior to the amendment in violation of State
Upon review, we conclude that the City's 2013 amendment
to its charter ordinance that reduced each individual
employee-member's right to vote for three employees of
his or her choice to serve on the Board, while diluting
employees' voice on the Board, modified "other
rights" and therefore, is contrary to State law.
Accordingly, for the reasons stated more fully below, we
reverse the decision of the court of appeals and restore the
right of employee-members to vote for three employees of
their choice to serve as employee-members of the Board. We
also return the Board's size to its size prior to 2013.
In 1937, the State established the ERS and its administrative
powers and responsibilities for cities of the first class.
Ch. 396, Laws of 1937. The "administration and
responsibility for the proper operation of the retirement
system" were "vested" in the Board.
Id., § 7(1). The 1937 Law established
classifications for Board positions and the right of
employees to elect three employees to serve as Board members.
Relevant to our discussion of MPA's and MPFFA's
challenge, the Law provided:
(2) MEMBERSHIP. The membership of the board shall consist of
(a) Three members to be appointed by the chairman of the
common council or other governing body (subject to the
confirmation by such common council or other governing body),
for a term of three years,
(b) The city comptroller ex-officio,
(c) Three employe[e] members who shall be members of the
retirement system and who shall be elected by the members of
the retirement system for a term of three years according to
such rules and regulations as the board shall adopt to govern
such election. The initial terms of the first three members
so elected shall expire at the end of one, two and three
years, respectively. Following the completion of the initial
terms, the terms of the office of such members shall be three
§ 7(2), ch. 396, Laws of 1937.
If a vacancy occurred "in the office of a board
member," the 1937 Law provided that "the vacancy
shall be filled for the unexpired term in the same manner as
the office was previously filled." Id., §
7(3) . Each Board member had one vote. "Four votes shall
be necessary for a decision by the members of the board at
any meeting of the board." Id., § 7(5).
The 1937 Law also provided that it is the Board's
responsibility to "establish rules and regulations for
the administration of the funds created by this act and for
the transaction of its business." Id., §
7(6) . The Board members were "trustees of the several
funds of the system," and given the "full power
[and] sole discretion to invest and re-invest."
Id., § 9(1).
In 1947, in order to give all first class cities such as
Milwaukee "the largest measure of self-government with
respect to pension annuity and retirement systems," the
State amended its 1937 ERS enactment and granted the City the
opportunity to assume responsibility for the ERS, whereby the
City could "amend or alter the provisions" of the
ERS "in the manner prescribed by section 66.01 of the
statutes." § 31(1), ch. 441, Laws of 1947. However,
in so doing, the legislation did not give the City carte
blanche to amend the ERS as it pleased. Rather, the law
explicitly limited the City's power, providing that
"no such amendment or alteration [to the ERS] shall
modify the annuities, benefits or other rights of any persons
who are members of the system prior to the effective date of
such amendment or alteration." Id.
In 1967, the City, by charter ordinance, exercised home rule
over the ERS. The City adopted the language from § 31(1)
of the 1947 Law nearly verbatim. The City's home rule as
it appears in its charter ordinance states:
For the purpose of giving to cities of the first class the
largest measure of self-government with respect to pension,
annuity and retirement systems compatible with the
constitution and general law, it is hereby declared to be the
legislative policy that all future amendments and alterations
to this act are matters of local affair and government and
shall not be construed as an enactment of statewide concern.
Cities of the first class are hereby empowered to amend or
alter the provisions of this act in the manner prescribed by
s. 66.0101, Wis. Stats., provided that no such amendment
or alteration shall modify the annuities, benefits or other
rights of any persons who are members of the system prior to
the effective date of such amendment or alteration.
Milw., Wis., Charter Ord. § 36-14 (emphasis added).
Following the City exercising its home rule power, the voting
rights of ERS members who were employees remained the same as
that provided by statute when the ERS was created. That is,
employees continued to have the right to vote for three
employees to serve as members to the Board. Milw., Wis.,
Charter Ord. § 36-18-2.
In 1972, the City amended its charter ordinance, changing the
composition of the Board. The amendment added a retired
employee as a member of the Board, elected by other retired
employees. Milw., Wis., Charter Ord. § 36-15-2(d). This
change did not limit the voting rights of employee-members,
who continued to have the right to elect three employees of
their choice to serve as members of the Board. Id.
In 2013, the City again amended its charter ordinance. The
2013 amendment significantly reduced the voting rights of
employees to select employees as members of the Board. MPA
members were limited to electing only one Board member, and
that person had to be a police officer. Milw., Wis., Charter
Ord. § 36-15-(2) (c) . MPFFA employees voting rights
were similarly reduced so that they too could elect only one
Board member and they could select only a firefighter.
Id. And finally, the City limited the voting rights
of all other employee-members of the ERS such that they could
vote for only one Board member who could be neither a police
officer nor a firefighter. Id.
The 2013 amendment also increased the size of the Board to
eleven members. While the chairman of the common council
continued to appoint three Board members, pursuant to the
amendment, the mayor was given power to appoint three
additional Board members. Id., § 36-15-(2)
MPA challenged the 2013 changes to the ERS in circuit court,
seeking declaratory judgment and a permanent injunction. In
so doing, MPA alleged that the 2013 amendment infringed on
the rights of police officers to vote for three employees to
serve as ERS Board members, and to participate in a Board of
similar size to that provided in the State's 1947
delegation to the City. The circuit court allowed MPFFA, who
sought the same relief, to intervene.
The City and MPA filed cross-motions for summary judgment,
and the circuit court ruled in favor of the City, concluding
that the modifications of the ERS were lawful. In its oral
ruling, the circuit court concluded that "under the
circumstances [, ] the other rights provisions of the statute
and the charter do not include a specific right to the makeup
of the board," and "the city's modification of
the makeup of the board does not affect any of the rights of
the members." The circuit court did not address the
curtailment of individual employee's right to vote to
elect three employees to serve as Board members.
On appeal, the court of appeals affirmed the circuit court,
relying in large part on Stoker v. Milwaukee Cty.,
2014 WI 130, 359 Wis.2d 347, 857 N.W.2d 102. The court of
appeals concluded that there were no vested rights to the
size, composition, and manner of election of the Board and
that "the City is entitled to amend, on a prospective
basis" these matters "because the members of the
retirement system do not have any rights in those
matters." Milwaukee Police Ass'n, No.
2015AP2375, unpublished slip op., ¶21 (Wis. Ct. App.
Mar. 23, 2017) . As with the circuit court, the court of
appeals ignored individual employee's right to vote to
elect three employees to serve as Board members. The court of
appeals did so by shifting the focus of its discussion to the
Board's "size, composition, and manner of
elections," rather than considering individual
employee's statutory right to vote or whether they had a
meaningful voice in Board decisions. Id., ¶17.
MPA and MPFAA sought review of the court of appeals'
decision; we granted review. For the reasons set forth below,
we reverse the decision of the court of appeals.
Standard of Review
This case is before us on summary judgment granted to the
City. We review summary judgments independently. Grygiel
v. Monches Fish & Game Club, Inc., 2010 WI 93,
¶12, 328 Wis.2d 436, 787 N.W.2d 6. Here, summary
judgment turns on statutory interpretation that we also
address independently, while benefitting from the discussions
of the court of appeals and the circuit court. Voces De
La Frontera v. Clarke, 2017 WI 16, ¶12, 373 Wis.2d
348, 891 N.W.2d 803.
Furthermore, we independently decide, as a matter of law,
whether a matter is primarily of statewide concern, Black
v. City of Milwaukee, 2016 WI 47, ¶30, 369 Wis.2d
272, 882 N.W.2d 333. B. Statute/Ordinance Interaction
Municipal corporations have only those powers that were
specifically conferred on them and those that are necessarily
implied by the powers conferred. Van Gilder v. City of
Madison, 222 Wis. 58, 73, 268 N.W. 108 (1936);
Butler v. City of Milwaukee, 15 Wis. 546 (*493), 550
The City, through statutory delegation from the State and its
enactment of charter ordinance pursuant to Wis.Stat. §
66.0101 (2015-16),  has home rule powers permitted by Article
XI, § 3(1) of the Wisconsin Constitution, some of which
bear on the ERS. Black, 369 Wis.2d 272, ¶4.
In the case before us, the State permitted the City to
exercise home rule over many ERS provisions. Ch. 441, Laws of
1947. The City began to exercise those powers in 1967.
However, notwithstanding the City's home rule powers,
certain aspects of the ERS continued to be matters of
statewide concern. See e.g., Madison Teachers,
Inc. v. Walker, 2014 WI 99, ¶95, 358 Wis.2d 1, 851
N.W.2d 337 (concluding that Wis.Stat. § 62.623
(2011-12), which prohibited the City from paying
employees' shares of ERS contributions, was a matter of
statewide concern and therefore, § 62.623 superseded the
City's home rule powers). Furthermore, the delegation of
authority to the City in regard to the ERS was specifically
limited by the legislature's 1947 enactment. The City was
given no power to "modify the annuities, benefits or
other rights of persons who are members of the system."
The City's management of the ERS arises through
legislative delegation as a "matter of local affair[s]
and government." § 31(1), ch. 441, Laws of 1947.
Through this delegation, the City was given the power to
"amend or alter" the ERS to best suit the needs of
the system. However, an important limitation was placed on
the City; it was precluded from modifying "the
annuities, benefits or other rights of any persons
who are members of the system . . . ." Id.
At oral argument all parties seemed to agree that neither the
employees' right to vote for three employees to serve as
members of the Board nor the size of the Board comes within
"annuities" or "benefits." The City did
not contest that employees are "persons who are members
of the system."
Where the disagreement lies is with the meaning of
"other rights." That disagreement is two-fold: (a)
whether each employee-member has the right to vote to elect
three employees to serve as Board members, and (b) whether
the Board must remain of a similar size to that originally
established under the 1947 Law, wherein the State
specifically limited the City's management powers over
the ERS. We address each contention in turn. a. Employee
The ERS was created by the legislature to provide benefits
for City employees at their retirement and to pay benefits to
the widows and children of deceased employees. Ch. 396, Laws
of 1937. The Board was charged with the responsibility to
establish rules and regulations for conducting Board
business. Id., § 7(6). Board members were
"trustees" of the funds they managed, in which the
Board had "full power in its sole discretion to invest
and re-invest." Id., § 9(1).
In 1937, each employee who was an ERS member was granted
voting rights sufficient to elect three employees of his or
her choice to become Board members. Id., § 7(2)
(c) . Those employee voting rights assured that the interests
of employees, for whom the ERS was created, would have a
meaningful voice in Board decisions. Stated more fully,
employee-elected Board members were positioned to have
oversight of the ERS so that its funds would not be wasted
and employees left without income after years of work.
In 1947, when the State granted the City the opportunity to
manage the ERS through enactment of a home rule charter
ordinance, the State limited the City's ability to amend
or alter the ERS. The State specifically protected employees
by providing that the City could not "modify the
annuities, benefits or other rights of any persons
who are members of the system prior to the effective date of
such amendment or alteration." § 31(1), ch. 441,
Laws of 1947 (emphasis added).
"Other rights" is not a legislatively defined term.
Accordingly, we interpret "other rights" to give
meaning to the legislative mandate by which the State limited
the City's power to amend or alter the ERS. State ex
rel Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶45, 271 Wis.2d 633, 681 N.W.2d 110.
The purpose of a statute informs our interpretation of
statutory terms. McNeil v. Hansen, 2007 WI 56,
¶16, 300 Wis.2d 358, 731 N.W.2d 273 (citing Klein v.
Bd. of Regents of Univ. Wis. Sys., 2003 WI.App. 118,
¶13, 265 Wis.2d 543, 666 N.W.2d 67 (concluding that
statutory interpretation that contravenes the purpose of a
statute is disfavored)). If a statute is capable of a
reasonable construction that carries out the manifest purpose
of the enactment, that construction should be given.
Westmas v. Creekside Tree Serv., Inc., 2018 WI 12,
¶19, 379 Wis.2d 471, 907 N.W.2d 68. Statutory terms are
interpreted in the context in which they occur, not in
isolation. State ex rel Kalal, 271 Wis.2d 633,
¶46. Ejusdem generis is a canon of statutory
construction that is sometimes employed to arrive at the
meaning of a term from the context in which the term appears.
Milwaukee Journal Sentinel v. DOA, 2009 WI 79,
¶44, 319 Wis.2d 439, 768 N.W.2d 700.
That annuities and benefits are rights of employees, is not
contested by the City. Furthermore, a plain reading of the
statute where annuities and benefits precede "other
rights" in the same sentence implies that "other
rights" are of the same type, i.e., ERS rights belonging
to employees, Auto-Owners Ins. Co. v. City of
Appleton, 2017 WI.App. 62, ¶17, 378 Wis.2d 155, 902
N.W.2d 532, as contrasted with ERS rights belonging to the
"Annuity" is a defined term that focuses on
financial payments for the welfare of ERS members and their
families. § 1(6), ch. 396, Laws of 1937. However,
although ch. 441, Laws of 1947 did not define "other
rights," the 1947 legislation did explain that the
"purpose of safeguarding the stability of pension
systems" was an important concern. § 31(2), ch.
441, Laws of 1947. Safeguarding ERS stability is promoted by
employee-participation in the Board because it is employees,
current and past, for whom stability of the ERS is critical.
Preamble to ch. 396, Laws of 1937.
With that clearly stated purpose in mind, the phrase,
"other rights" easily encompasses employee voting
rights because employee members of the Board are in a unique
position to oversee the Board's use of funds and thereby
safeguard the financial stability of the ERS. Employees have
the most to gain from a financially stable ERS because the
ERS directly impacts their financial security upon
retirement. In addition, it is employees who will suffer most
if ERS funds are lent to a cause that returns a worthless
promissory note in exchange for the funds that the Board
manages, as has occurred in other states.
And finally, the term, "other rights," occurs in a
series of financially related terms, e.g., annuities and
benefits that affect employees. It is reasonable to conclude
that § 31(1) of the 1947 enactment meant the phrase
"or other rights" to include employee ERS rights
bearing on financial matters in addition to annuities and
benefits. This context assists in interpreting the meaning of
"other rights." Milwaukee Journal
Sentinel, 319 Wis.2d 439, ¶44.
We conclude that the term, "other rights," includes
the right of each individual employee-member of the ERS to
vote for three employees of his or her choice to become
members of the Board and thereby oversee the continued
financial stability of the ERS. Stated otherwise, it was
these other financially-related rights of individual
employee-members that the State required the City not amend
or alter. As we have explained above, the right of each
employee to vote to elect three employee members to serve on
the ERS Board promotes financial stability for the ERS.
When the Board was established in 1937, it had seven members,
three of whom were current City employees, three of whom were
political appointees. § 7(2), ch. 396, Laws of 1937.
Each Board member had one vote, and a Board decision required
four votes. Id., § 7(5) . The Board size
remained the same in 1947 when the State granted the City the
opportunity to assume responsibility for the ERS and in 1967
when the City enacted its charter ordinance, availing itself
of that opportunity.
In 1972, the City amended its charter ordinance to increase
the Board's size to eight. Milw., Wis., Charter Ord.
§ 36-15-2(d). A Board position for a retired employee,
who was elected by retired employees, was added. Id.
This decision did not dilute the employees' opportunity
to oversee financial decisions of the Board. Financial
stability of the Board was paramount for retired employees
In 2013, the City gave the mayor the power to appoint three
Board members, thereby increasing the Board size to eleven.
Milw., Wis., Charter Ord. § 36-15-2 (a-3) . Thereafter,
six of the eleven Board members were political appointees.
This increase in board size with political appointees diluted
the employees' ability to have the Board address concerns
they may have about ERS's financial stability.
In the matter before us, the Board was given the
administrative responsibility for the operation of the ERS.
§ 7(6), ch. 396, Laws of 1937. For example, the Board
was given the responsibility to "establish rules and
regulations for the administration of the funds."
Id. Board members were denominated,
"trustees," of the assets under their care.
Id., 9(1) . Although this change in the size of the
Board did not affect the Board's purpose or its
obligations, it did affect the employees' voice in regard
to Board decisions. With three appointments made by the
chairman of the common council and three appointments made by
the mayor, political appointees could control all Board
decisions, including those affecting the financial stability
We conclude that having a meaningful voice on the Board is
among the "other rights" of employees that the City
was not free to alter or modify under its home rule
authority. Accordingly, we reverse the court of appeals
conclusion that increasing the size of the Board to eleven
members did not conflict with State law. 2. Statewide concern
We next consider whether promoting financial stability of the
ERS is a matter primarily of statewide concern, primarily of
local concern or a combination of the two. Madison
Teachers, 358 Wis.2d 1, ¶96. When there is a
conflict between a home rule ordinance and countervailing
state legislation, if the matter is exclusively of statewide
concern, the statute controls. Id., ¶116;
see also DeRosso Landfill Co. v. City of Oak Creek,
200 Wis.2d 642, 647, 547 N.W.2d 770 (1996) .
Furthermore, when a law concerns a policy matter primarily of
statewide concern, home rule powers are insufficient to
permit municipal regulation of the matter. Madison
Teachers, 358 Wis.2d 1, ¶97 (citing Van
Gilder, 222 Wis. at 84.) If a matter is primarily of
local concern, the State nevertheless may regulate the matter
so long as the State does so with uniformity. Id.,
It is within the purview of the legislature to enact statutes
that regulate for the benefit of public health, safety and
welfare. Black, 369 Wis.2d 272, ¶5. Stability
of the ERS was a concern of the legislature in 1947 when it
created the opportunity for home rule management. §
31(2), ch. 441, Laws of 1947. The financial stability of the
ERS affects the welfare of present and past ERS members and
Legislative protection of retirement benefits for employees,
as well as for widows and children of deceased employees, is
a matter of public welfare, and therefore, primarily of
statewide concern. Madison Teachers, 358 Wis.2d 1,
¶97. A financially stable ERS is promoted by the
legislature's grant of the right to each employee-member
to elect three employees to serve on the Board where their
number gives a meaningful voice to employees' concern for
financial stability of the ERS. Stated otherwise, through
their right to vote to elect employees who will have Board
participation with a meaningful voice, employees can assure
that present and future financial stability of the ERS remain
paramount. Accordingly, the voting rights of individual
employees for membership on a Board that does not unduly
dilute their participation supports and is intertwined with a
matter of statewide concern.
We conclude that the City's 2013 amendment to its charter
ordinance that reduced each individual employee-member's
right to vote for three employees of his or her choice to
serve on the Board while diluting employees' voice on the
Board modified "other rights" and therefore is
contrary to State law. Accordingly, we reverse the decision
of the court of appeals in this regard and restore the right
of employee-members to vote for three employees of their
choice to serve as employee-members of the Board. We also
return the Board's size to its size prior to 2013.
decision of the court of appeals is reversed.
REBECCA GRASSL BRADLEY, J. (concurring).
the majority opinion but write separately to respond to the
dissents. One dissent accuses the majority of having
"manufactured" a right for the employee members of
the Employee Retirement System of Milwaukee because the
statutes do not define what "other rights" the
Wisconsin legislature prohibits the City from modifying.
Justice Kelly's dissent, ¶103. But when the
legislature does not define a term, it is up to the judiciary
to identify and declare its meaning, something neither
dissent attempts. Another dissent says the majority's
recognition of employee voting rights "borders on the
absurd." Justice Abrahamson's dissent, ¶55.
However, the logical extension of the dissents' position
would be to allow the City to disband the Employee Retirement
System (ERS) Annuity and Pension Board (Board) altogether,
thereby eliminating the entire administrative structure of
The legislature "vested" "[t]he general
administration and responsibility for the proper operation of
the retirement system ... in an annuity and pension
board." § 7(1), ch. 396, Laws of 1937. The
legislature also "vested" in the Board the
responsibility "for making effective the provisions of
this act." Id. Accepting the dissents'
construction of these laws would render both provisions
utterly ineffective: A retirement system would exist for the
payment of benefits to employees but there would be no entity