High Court Sticks It To Milwaukee

The national reputation of the Wisconsin Supreme Court has suffered for many years, and hasn’t been helped by Chief Justice Pat Roggensack’s attacks on anyone who dares to question the court’s decisions.

Now Roggensack has embarrassed herself again with another highly questionable 4-3 decision, in this case overturning a city law that changed the composition of its pension board. In the process Roggensack managed to unite liberal Justice Shirley Abrahamson and conservative justice Daniel Kelly, who both dismantled Roggensack’s reasoning and left her decision in shreds. 

The decision “borders on the absurd,” Abrahamson charged. Kelly was even more scathing, charging the court has given the unions rights that “don’t actually exist anywhere in the constitution, statutes, regulations, or common-law, so we had to create them… We are not giving voice to the legislature’s purpose. We are defying it.”

At issue was a 2013 law by the city which expanded the city pension board from 8 to 11 members while giving the mayor power to appoint those three new members. Roggensack’s ruling concluded the change violated state law which gave the city power to run its pension fund so long as it did not “modify the annuities, benefits or other rights of any persons who are members of the system.” 

All sides in the case agreed that “annuities and benefits’ did not refer to membership on the pension board, so that leaves the vague phrase “other rights,” which Roggensack’s ruling admitted was never defined by the legislature. So the court decided to do so, as Kelly writes: 

“Using the catch-all ‘other rights’ provision as a window into the hidden depths of the legislature’s very soul, we purportedly saw its ‘clear purpose’ to create and preserve a right to proportional representation and at-large elections, rights so critical to the preservation of the retirement system that the legislature made no mention of them at all.”

If the “other rights” clause meant the city couldn’t change the terms or membership of the board, then it has been breaking the law for some time, as Abrahamson noted. In 1972, the city expanded the board from seven to eight members, adding one more position for city employees. In 1980, the term of Pension Board members was extended from three to four years except for the City Comptroller. In 1996, the term of the three Pension Board members appointed by the President of the Common Council was reduced from four to two years.

Yet the Roggensack majority did not strike down the 1972 expansion even as they overruled the 2013 expansion. “On what possible basis would adding a seat in 1972 be valid, but adding three seats in 2013 be invalid?” Abrahamson asked. The court’s decision to allow the 1972 change, Kelly writes, suggests it believes the city does have the power to change the composition of the board. 

Abrahamson pointed to a 1947 state law which gave a “city of the first class” (Milwaukee) “the largest measure of self-government with respect to pension annuity and retirement systems.” The idea that the Legislature gave the city such sweeping power, but did not intend to allow it “to change the composition of their municipal pension boards…borders on the absurd,” she chided.  

The pension board representation the unions wished to preserve may be beneficial for its members, Kelly notes, but was not specified in the statutes and “we have no mandate to roam the state looking for good ideas to enact.” 

Perhaps the most laughable assertion by Roggensack is that the union employees need more voting power because this will protect the stability of the pension fund. “Employees have the most to gain from a financially stable ERS [Employee Retirement System] because the ERS directly impacts their financial security upon retirement,” she writes.

“But this just isn’t so,” Kelly counters. “The ERS’s financial stability has no effect on the employees’ financial security at all. Liability for retirement benefits belongs to the City, and the City must pay them regardless of whether the ERS has any funds to manage.”

Indeed, numerous court decisions have ruled that pension benefits, once awarded to employees, cannot be taken away. And in the late 1990s, when huge increases in the stock market grew the city pension fund, the police and fire unions wanted to grab some of the money and pushed for the city to sweeten their pensions, which then Mayor John Norquist opposed. Norquist was concerned about protecting taxpayers, who have to pay off the pension whether the market goes up or down. 

“Actually, the people with the most interest in the ERS’s financial stability are not the employees, but the taxpayers of the City of Milwaukee, who are ultimately liable for the ERS’s financial obligations through the imposition of additional taxes,” Kelly writes. 

That’s precisely why Mayor Tom Barrett and the Common Council passed the 2013 law, to give citizen appointees with no vested interest more power over the pension board.

The suit by Police and Fire unions first came before Circuit Court Judge Timothy Dugan, who ruled that “the makeup of the [Pension Board] does not affect any of the rights of the members.” The state Court of Appeals affirmed that judgment, ruling that “the City is entitled to amend, on a prospective basis, matters related to the size, composition, and manner of election of the pension board because the members of the retirement system do not have any rights in those matters.”

But Roggensack and justices Annette Ziegler, Rebecca Bradley and Michael Gableman chose to overrule the lower courts. Barrett called the ruling “a gift back” to unions who supported the justices. Roggensack and Bradley were supported by both unions when they ran for election, while Ziegler and Gableman were supported by the Milwaukee Police union.

All four joined in supporting a decision that found a new right for the unions that hadn’t been mentioned by the legislature, as Kelly noted: “With no text upon which to rely, we thought to peer behind the legislative curtain in hopes of discovering what rights the legislature meant to confer, but forgot to put in the act they actually adopted.”  

Kelly was equally scathing about Rebecca Bradley’s concurring opinion, which he called “long on general rules of statutory construction, and short — to the point of nonexistence — on sources of law for its conclusion.”

Justice Ann Walsh Bradley signed on to Abrahamson’s dissent, which displayed the latter’s typically powerful intellect and command of the law, combined with a pungent writing style. It was Abrahamson’s work, more than anything, that accounted for Wisconsin’s high court being considered among the most influential state supreme courts in the nation, back before the Wisconsin Manufacturers and Commerce began using massive campaign spending to promote mediocrities like Gableman. 

But the real surprise here is Kelly. The idea that conservative judges are strict constructionists who adhere more to the law than liberal judges, has been disproven repeatedly. As Barrett noted of Roggensack and her conservative majority: “This is an activist court that sees itself as a legislator.”

But Kelly, who was appointed by Gov. Scott Walker and looks like he might be very conservative, proved himself in this case to be a very strict constructionist who has no problem calling out a patently political piece of judicial flimflammery. If he consistently applies this philosophy in future cases, whether they involve pet legal theories by Democrats or Republicans, he could became an intellectual asset to a court that is now woefully lacking in this department.

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