                                                                  2015 WI 12

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP2490
COMPLETE TITLE:         Susan Schwegel and Susan Jaskulski,
                                   Plaintiffs,
                        Wisconsin Federation of Nurses and Health
                        Professionals ,
                        Local 5001, AFT, AFL-CIO and Association of
                        Milwaukee
                        County Attorneys,
                                   Plaintiffs-Respondents-Petitioners,
                             v.
                        Milwaukee County,
                                   Defendant-Appellant.




                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 351 Wis. 2d 421, 839 N.W.2d 869)
                                    (Ct. App. 2013 – Published)
                                      PDC No: 2013 WI App 134

OPINION FILED:          February 12, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 1, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Christopher R. Foley

JUSTICES:
   CONCURRED:           PROSSER, J., concurs. (Opinion filed.)
   DISSENTED:           ABRAHAMSON, C.J., BRADLEY, J., dissents.
                        (Opinion filed.)

ATTORNEYS:
       For        the   plaintiffs-respondents-petitioners,     there   were
briefs       by     Jeffrey   P.   Sweetland   and   Hawks   Quindel,   S.C.,
Milwaukee, and oral argument by Jeffrey P. Sweetland.




       For the defendant-appellant, there was a brief by Alan M.
Levy and Lindner & Marsack, S.C., Milwaukee. Oral argument by
Alan M. Levy.
2
                                                                    2015 WI 12
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2012AP2490
(L.C. No.    2012CV1528)

STATE OF WISCONSIN                        :            IN SUPREME COURT

Susan Schwegel and Susan Jaskulski,

              Plaintiffs,

Wisconsin Federation of Nurses and Health
Professionals, Local 5001, AFT, AFL-CIO and                      FILED
Association of Milwaukee County Attorneys,
                                                            FEB 12, 2015
              Plaintiffs-Respondents-Petitioners,
                                                               Diane M. Fremgen
      v.                                                    Clerk of Supreme Court


Milwaukee County,

              Defendant-Appellant.




      REVIEW of a decision of the Court of Appeals.                  Affirmed;

cause remanded to the circuit court to dismiss the complaint.


      ¶1      PATIENCE DRAKE ROGGENSACK, J.       We review a published

decision of the court of appeals1 reversing an order of the

circuit court2 that granted summary judgment to the Wisconsin
      1
       Wis. Fed'n of Nurses & Health Prof'ls, Local 5001 v.
Milwaukee Cnty., 2013 WI App 134, 351 Wis. 2d 421, 839 N.W.2d
869.
      2
       The Honorable Christopher R. Foley of Milwaukee County
presided.
                                                                         No.    2012AP2490



Federation       of     Nurses     and       Health       Professionals        (Wisconsin

Federation),        the     Association          of    Milwaukee      County   Attorneys

(County Attorneys), Wisconsin Federation member Susan Schwegel,

and County Attorneys member Susan Jaskulski.                       Our review focuses

on the interpretation of a Milwaukee County General Ordinance

(MCGO), § 17.14(7)(ee)(1) (2011), that prospectively eliminated

Medicare     Part      B    premium      reimbursement         upon     retirement     for

employees who did not retire before retirement dates established

by Milwaukee County.

    ¶2      Plaintiffs           claim       a        vested   contract        right    to

reimbursement of Medicare Part B premiums upon retirement, even

though they have not yet retired.3                       We conclude that Milwaukee

County     did   not       abrogate      a   vested       contract     right    when    it

prospectively modified a health insurance benefit it offered for

employees who had not yet retired.                        We further conclude that

County employees have a vested contract right to Medicare Part B

premium reimbursement when they fulfill all three criteria for

its payment:          (1) reaching retirement age; (2) providing 15 or
more years of credited county service; and (3) retiring before


    3
       In   their   complaint,   plaintiffs   claim  that   MCGO
§ 17.14(7)(ee)(1) (2011) is unconstitutional as applied to them
because it impairs a vested contract right, contrary to Article
I, Section 12 of the Wisconsin Constitution, and is a
deprivation of property without just compensation, contrary to
Article I, Section 13 of the Wisconsin Constitution.    However,
before us, plaintiffs contend they have a vested contract right,
without continuing that contention in the context of a
constitutional claim. Therefore, we too limit our discussion to
whether plaintiffs have a vested contract right to reimbursement
of Medicare Part B premiums when they retire.

                                              2
                                                                           No.   2012AP2490



the dates established by Milwaukee County.                      Employees who do not

meet       all   three   criteria       have    not    fulfilled     the    requirements

necessary to establish a vested contract right to reimbursement.

Therefore, we affirm the decision of the court of appeals that

granted summary judgment to Milwaukee County.

                                   I.     BACKGROUND4

       ¶3        Plaintiffs    claim     that       MCGO    § 17.14(7)(ee)(1)      (2011)

impairs their vested contract right to reimbursement of Medicare

Part B premiums when they retire.5                     Accordingly, we must decide

whether § 17.14(7)(ee)(1) (2011)'s prospective modification of

the County's obligation to reimburse Medicare Part B premiums at

retirement        for    Susan    Schwegel,         Susan    Jaskulski,       members   of

Wisconsin Federation and members of County Attorneys who were of

retirement age, had 15 years of credited service to the County,

but    who        did    not     retire        by     the    dates    established       in

§ 17.14(7)(ee)(1) (2011), breached a vested contract right.

       ¶4        Plaintiffs moved for summary judgment                     enjoining the

application of MCGO § 17.14(7)(ee)(1) (2011) and requiring the
County to continue to reimburse Medicare Part B premiums for

affected         plaintiffs      when    they       retire    and    become      Medicare-



       4
       The parties entered into a Stipulation of Facts for
purposes of summary judgment. Facts employed herein were taken
from that stipulation.
       5
       A vested contractual right is one that cannot be abrogated
without breaching the contract from which it arises.          See
Society Ins. v. LIRC, 2010 WI 68, ¶69, 326 Wis. 2d 444, 786
N.W.2d 385.

                                               3
                                                                         No.    2012AP2490



eligible.     The County moved for summary judgment dismissing the

plaintiffs' action.

      ¶5     The facts relevant to the parties' cross-motions for

summary judgment are not in dispute.6                    In 1937, the legislature

instructed     counties    with       populations        of    500,000    or     more   to

establish retirement systems for their employees.                        Ch. 201, Laws

of 1937.

      ¶6     Effective    January 1,        1938,       Milwaukee    County       created

the   Milwaukee       County     Employees            Retirement    System        (MCERS)

pursuant to Chapter 201 of the Laws of 1937.                     Although MCERS was

created by the County, it was then controlled by the State.                             The

Laws of 1945 again addressed the State-controlled MCERS.                                Ch.

138, Laws of 1945.        Those laws provided in relevant part:

           (2) CONTRACTS TO ASSURE BENEFITS.    The benefits
      of members . . . and of beneficiaries of deceased
      members . . . shall be assured by benefit contracts as
      herein provided:

           (a) . . . [E]ach member and beneficiary having
      such a benefit contract shall have a vested right to
      such annuities and other benefits and they shall not
      be diminished or impaired by subsequent legislation or
      by any other means without his consent.
      ¶7     Effective     January 1,           1955,    Milwaukee       County       first

participated in health insurance for its employees.                            The County

did   so    under     Chapter    17    of       the     Milwaukee    County       General

Ordinances.      MCGO § 17.14(8) (1955).                 In the years following,

§ 17.14 was amended many, many times.                         We relate only those

amendments     that    bear     on    the   dispute       before    us.         One   such

      6
          See note 4 above.

                                            4
                                                                      No.    2012AP2490



amendment          occurred   in     1967,       when    Milwaukee    County       began

providing health insurance for retired employees.                           § 17.14(7)

(1967).

       ¶8         In 1965, the legislature granted home rule authority

over MCERS to Milwaukee County.                   Ch. 405, Laws of 1965.7            The

1965 shift to home rule empowered Milwaukee County "to make any

changes in such retirement system which hereafter may be deemed

necessary         or   desirable   for   the      continued      operation    of   such

retirement system."           Id. at § 2.           Chapter 405 of the session

laws       also    provided   that    "no    such       change   shall   operate     to

diminish or impair the annuities, benefits or other rights of

any person who is a member of such retirement system prior to

the effective date of any such change."                   Id.




       7
           Section 2 of Chapter 405, Laws of 1965, provides:

            For the purpose of best protecting the employes
       subject to this act by granting supervisory authority
       over each retirement system created hereunder to the
       governmental unit most involved therewith, it is
       declared to be the legislative policy that the future
       operation of each such retirement system is a matter
       of local affair and government and shall not be
       construed to be a matter of state-wide concern. Each
       county which is required to establish and maintain a
       retirement system pursuant to this act is hereby
       empowered, by county ordinance, to make any changes in
       such retirement system which hereafter may be deemed
       necessary or desirable for the continued operation of
       such retirement system, but no such change shall
       operate to diminish or impair the annuities, benefits
       or other rights of any person who is a member of such
       retirement system prior to the effective date of any
       such change.

                                             5
                                                                         No.    2012AP2490



      ¶9     In     1989,    the    County          limited    those    employees        who

qualify     for     continuation        of    health     insurance       benefits       upon

retirement at County expense:                     "The County shall pay the full

monthly     cost     of     providing        such     coverage   for     employes       who

commenced     their        employment        with    Milwaukee    County        prior    to

July 31, 1989."            MCGO § 17.14(7)(a) (1989).                  The County also

limited the continuation of retiree health insurance benefits at

County expense through a years-of-service requirement:                              "[t]he

provisions of (a) shall apply to retired members of [MCERS] with

15   or    more    years    of   creditable         pension    service    as    a   County

employe."         § 17.14(7)(h) (1989).              At the time both individual

plaintiffs began employment with Milwaukee County, the County's

retirement health insurance benefits included Medicare Part B

premium     reimbursement        for     those       employees    who     had    met    the

criteria set out in § 17.14(7)(h) (1989).8

      ¶10    In 1996, MCGO § 17.14(7)(h) was again amended.                             The

amendment     provided:          "The    provisions       of   this     subsection      are




      8
       Susan Jaskulski began County employment on June 15, 1989.
Susan Schwegel began County employment March 19, 1990. Although
MCGO   § 17.14(7)(h)   (1989)  internally    references a   date
limitation for continuation of health insurance at County
expense, by 2011, this start-of-employment limitation was no
longer present in Chapter 17. Instead, in 2011, § 17.14(7)(dd)
(2010), provided the conditions required for continuation of
health insurance benefits at County expense.

                                              6
                                                                   No.    2012AP2490



considered a part of an employee's vested benefit contract as

more fully set forth in 201.24(5.91)."9

     ¶11    In    2011,     an     amendment     adding       language    to   MCGO

§ 17.14(7)(ee)(1)         (2010)     restricted     the        applicability      of

paragraph    (ee)   that     addressed        payment    of    Medicare    Part    B

premiums    for   retired        employees.      After    the    2011     revision,

§ 17.14(7)(ee)(1) read:

          The provisions of section (ee) shall not apply to
     members not represented by a collective bargaining
     unit who retired and began receiving benefits from the
     Milwaukee County Employees Retirement System after
     April 1, 2011, nor to members represented by the . . .
     Association of Milwaukee County Attorneys . . . who
     retired   and  began   receiving  benefits   from  the
     Milwaukee County Employees Retirement System after
     December 31, 2011, nor to members represented by the
     Federation of Nurses and Health Professionals who
     retired   and  began   receiving  benefits   from  the




     9
       Plaintiffs note the reference to "201.24(5.91)" appears to
have been a drafting error and should have been "201.24(5.10)."
The County does not dispute plaintiffs' contention; accordingly,
hereinafter,    we   refer   to   § 201.24(5.10),   rather   than
§ 201.24(5.91).

     MCGO § 201.24(5.10) (1996), provided:   "Members who retire
with sufficient pension service credit as noted in chapter 17 of
the Code, or the appropriate labor agreement, shall be provided
with paid health insurance as noted in chapter 17 of the Code,
however such benefit shall not be funded via the pension fund."

                                         7
                                                                       No.      2012AP2490


      Milwaukee County Employees                Retirement       System      after
      December 31, 2012.10
      ¶12       In    summary,      after    the    2011     amendment          to     MCGO

§ 17.14(7)(ee)(1),            the        Medicare     Part       B     reimbursement

modification required that members of County Attorneys had to

retire on or before December 31, 2011, and members of Wisconsin

Federation had to retire              on or before         December 31, 2012,           in

order      to    secure     County    reimbursement        for   Medicare        Part    B

premiums upon retirement.

      ¶13       Both parties moved for summary judgment.                    The circuit

court      granted     plaintiffs'       motion,    concluding       that      qualifying

employees have a vested benefit contract requiring Medicare Part

B premium reimbursement, and the County's refusal to reimburse

premiums upon those employees' retirements would constitute a

material breach of their vested rights.                   The circuit court noted

that it relied on Welter v. City of Milwaukee, 214 Wis. 2d 485,

571   N.W.2d         459   (Ct.   App.    1997),    and    Rehrauer       v.    City    of

Milwaukee, 2001 WI App 151, 246 Wis. 2d 863, 631 N.W.2d 644,

which may have conflicted with Loth v. City of Milwaukee, 2008
WI 129, 315 Wis. 2d 35, 758 N.W.2d 766.


      10
       Wisconsin Federation and the County were parties to a
collective bargaining agreement covering Wisconsin Federation's
wages, hours, and conditions of employment, including coverage
under the County's group health insurance program.           The
Wisconsin Federation-County collective bargaining agreement
expired December 31, 2012. County Attorneys and the County were
parties to a collective bargaining agreement covering County
Attorneys' wages, hours, and conditions of employment, including
coverage under the County's group health insurance program. The
County Attorneys-County collective bargaining agreement expired
December 31, 2011.

                                            8
                                                                             No.     2012AP2490



       ¶14    The    court    of     appeals          reversed      and    granted    summary

judgment to Milwaukee County.                        Wis. Fed'n of Nurses & Health

Prof'ls, Local 5001 v. Milwaukee Cnty., 2013 WI App 134, ¶16,

351 Wis. 2d 421, 839 N.W.2d 869.                       The court of appeals reasoned

that it was bound by Loth.                      Id., ¶11.           The court of appeals

agreed with the circuit court "that Loth appears at odds with

both Welter . . . and Rehrauer . . ., and that Loth discussed

neither decision."           Id.     The court of appeals, however, declined

to   "discuss or distinguish either                        Welter    or    Rehrauer."      Id.

Rather,      applying    Loth,       the       court       of    appeals    concluded      that

employees were merely eligible for vested benefits until they

had completed all prerequisites, including actually retiring,

and that the County was not restricted from modifying Medicare

Part    B    premium     reimbursement                until      employees'     eligibility

matured      into    entitlement           by        employees      fulfilling       all   the

conditions necessary to receipt of the benefit.11                           Id., ¶14.

       ¶15    We    granted    plaintiffs'             petition      for   review    and   now

affirm the decision of the court of appeals.
                                    II.        DISCUSSION

       ¶16    Plaintiffs claim that MCGO § 17.14(7)(ee)(1) (2011),

which       prospectively          modifies          the        County's    obligation      to

reimburse      Medicare       Part         B     premiums          upon    retirement      for

plaintiffs who were of retirement age, had 15 years of credited

       11
       The court of appeals did note "It is true, of course,
that once eligibility matures into entitlement, a benefit may
not be retroactively modified or eliminated."  Wis. Fed'n, 351
Wis. 2d 421, ¶14.    The County does not dispute the court of
appeals' conclusion.

                                                 9
                                                                         No.    2012AP2490



service to the County, but who had not retired by the dates

established in § 17.14(7)(ee)(1) (2011), impairs their vested

contract right to be reimbursed for Medicare Part B premiums

when   they    retire.       This    contention       requires     us     to   focus   on

legislative enactments and County ordinances.

                             A.   Standard of Review

       ¶17    Plaintiffs claim their vested contract right arises

from their employment by Milwaukee County.                       They rely on laws

that     they       assert        preclude         the      enactment          of    MCGO

§ 17.14(7)(ee)(1) (2011) and on their interpretations of prior

ordinances, which they claim Milwaukee County was not free to

amend.

       ¶18    The interpretation and application of session laws or

statutes present questions of law that we independently review,

while benefitting from previous court discussions.                         Spiegelberg

v. State, 2006 WI 75, ¶8, 291 Wis. 2d 601, 717 N.W.2d 641.

Likewise, construction of an ordinance under undisputed facts is

a question of law for our independent review.                      Browndale Int'l,
Ltd. v. Bd. of Adjustment for Dane Cnty., 60 Wis. 2d 182, 200,

208 N.W.2d 121 (1973).

       ¶19    The   court    of     appeals       granted    summary      judgment     to

Milwaukee      County.        When     we        review     summary      judgment,     we

independently apply the same methodology as the court of appeals

and    the    circuit    court,     benefitting           from   their    discussions.

Loth, 315 Wis. 2d 35, ¶9; Richards v. Badger Mut. Ins. Co., 2008

WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581.


                                            10
                                                                 No.     2012AP2490



     ¶20    We begin with the complaint to determine whether it

arguably states a claim; if it does, we then review the answer

to see whether issues of material fact or law have been joined.

Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶16, 291 Wis. 2d

283, 717 N.W.2d 17.            If we conclude that the complaint and

answer    are   sufficient     to   join    issue,    we   examine     the   moving

party's affidavits to support the motion and the affidavits that

oppose the motion.        Id.       Summary judgment is appropriate when

there are no genuine disputes of material fact.                  Admanco, Inc.

v. 700 Stanton Drive, LLC, 2010 WI 76, ¶28, 326 Wis. 2d 586, 786

N.W.2d 759.      The parties do not dispute material facts giving

rise to plaintiffs' claims.12

                          B.    Contractual Rights

     ¶21    Plaintiffs       claim     MCGO       § 17.14(7)(ee)(1)          (2011)

abrogated a vested contractual right.                Section 17.14(7)(dd) and

(ee)(1)    (2011)   are   relevant         to   plaintiffs'    claims.         They

provide:

          (dd) The county shall pay the full monthly cost
     of providing such coverage to retired members of the
     county retirement system with fifteen (15) or more
     years of creditable pension service as a county
     employe. . . .

          (ee) Retired members of the county retirement
     system who are eligible for continuing their health
     insurance benefits at county expense under the
     provision of this section shall be eligible for
     reimbursement of the cost of their Medicare Part B
     premiums, as well as the Medicare Part B premiums of
     their eligible spouse and dependents.

     12
          See note 4 above.

                                       11
                                                                    No.    2012AP2490


            (1) The provisions of section (ee) shall not
      apply to members not represented by a collective
      bargaining unit who retired and began receiving
      benefits from the [MCERS] after April 1, 2011, nor to
      members represented by . . . the Association of
      Milwaukee County Attorneys . . . who retired and began
      receiving benefits from [MCERS] after December 31,
      2011, nor to members represented by the Federation of
      Nurses and Health Professionals who retired and began
      receiving benefits from [MCERS] after December 31,
      2012.
The   question    we   must    decide   is     whether    earlier    versions     of

§ 17.14(7),      in    combination      with     certain      session     laws    or

statutes,     vested    a     contractual      right     to   reimbursement       of

Medicare Part B premiums at retirement such that the County was

not free to modify it prospectively for employees who had not

yet retired.13

      ¶22   Plaintiffs rely on laws and ordinances that apply to

MCERS; we consider them as well.               We apply rules of statutory

interpretation to the interpretation of ordinances.                       Marris v.

City of Cedarburg, 176 Wis. 2d 14, 32, 498 N.W.2d 842 (1993).

"[T]he purpose of statutory [and ordinance] interpretation is to

determine what the statute [or ordinance] means so that it may
be given its full, proper, and intended effect."                    State ex rel.

Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271

Wis. 2d 633, 681 N.W.2d 110.             If a statute's [or ordinance's]

      13
       Although plaintiffs do not allege abrogation of their
rights because of other modifications of health insurance under
MCGO § 17.14(7), we note that in 2010, (7)(d) increased the
amount of employees' part-payment of premiums; (7)(n) increased
employees' deductibles; (7)(o) increased employees' co-pays for
office   visits;   (7)(q)  increased   employees'   out-of-pocket
payments; and (7)(r)-(u) increased employees' co-pays for many
other services such as visits to the emergency room.

                                        12
                                                                              No.    2012AP2490



meaning is plain, "we ordinarily stop the inquiry."                                  Id., ¶45

(quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211,

612 N.W.2d 659).             "Statutory [and ordinance] language is given

its    common,          ordinary,     and      accepted       meaning,         except     that

technical or specially-defined words or phrases are given their

technical or special definitional meaning."                         Id.

       ¶23    Plaintiffs contend that their vested contract right

arises       in     MCGO    § 17.14(7)(h)       (1996)        that    provides:           "The

provisions         of   this     subsection         are   considered      a    part     of   an

employee's vested benefit contract as more fully set forth in

201.24(5.[10])."            Plaintiffs refer to MCGO Chapter 201, which

contains          MCERS,    to     employ   earlier        statutory      language        that

applies to pension and death benefits addressed in MCGO Chapter

201,     which       they    now     contend        applies    to    health         insurance.

Plaintiffs attempt to engraft the MCGO pension and death benefit

restrictions onto § 17.14(7) (1996) to prevent the County from

prospectively modifying health insurance benefits contained in

§ 17.14(7) (1996).
       ¶24    An understanding of the history underlying both MCERS

and County paid health insurance is helpful in resolving the

claim plaintiffs propose.               In that regard, we note that Chapter

201 of the Laws of 1937 is the starting point from which MCERS

was developed. It provided for the establishment of pension and

death benefits for county employees in counties with populations

of 500,000 or more:

            Retirement   System    in   Populous   Counties;
       Definitions.   In each county having a population of

                                               13
                                                                 No.   2012AP2490


       five hundred thousand or more a retirement system
       shall be established and maintained for the payment of
       benefits to the employes of such county and to the
       widows and children of such employes, except employes
       who   are   contributory  to,   participants  in,   or
       beneficiaries of a pension fund in operation in the
       state, or any municipal subdivision thereof.       The
       funds of the retirement system shall be derived,
       administered and disbursed in accordance with the
       provisions of this act.
§ 1, ch. 201, Laws of 1937.         In 1938, in accord with the Laws of

1937, Chapter 201, Milwaukee County created MCERS, which was

then controlled by the State.

       ¶25   Laws promulgated in 1945, specifically Chapter 138 of

the Laws of 1945, again addressed the State-controlled MCERS.

Chapter 138 described retirement annuities and death benefits as

being   "benefit      contracts."    Those    laws    provided    in   relevant

part:

            (2) CONTRACTS TO ASSURE BENEFITS.    The benefits
       of members . . . and of beneficiaries of deceased
       members . . . shall be assured by benefit contracts as
       herein provided:

            (a) . . . [E]ach member and beneficiary having
       such a benefit contract shall have a vested right to
       such annuities and other benefits and they shall not
       be diminished or impaired by subsequent legislation or
       by any other means without his consent.
Ch. 138, Laws of 1945.

       ¶26   Plaintiffs rely heavily on the legislative statement

that    in   MCERS,    members   "shall    have   a   vested   right   to   such

annuities and other benefits and they shall not be diminished or

impaired by subsequent legislation or by any other means without

his consent."         Their reliance is misplaced because the quoted
legislative language of Chapter 138, Laws of 1945 set forth

                                      14
                                                                     No.   2012AP2490



above referred solely to pension and death benefits.                       The cited

legislative language could not have referred to health insurance

because in 1945 Milwaukee County did not pay health insurance

for its employees or for its retired employees.                     Therefore, the

"vested right" referred to by the legislature in (2)(a) above

and relied on by plaintiffs referred only to pension and death

benefits, which Milwaukee County then set out in Chapter 201

(1945).

    ¶27     In Chapter 405 of the Laws of 1965, the legislature

granted   Milwaukee   County       specific         home   rule    authority    over

MCERS.    It provided in relevant part:

         (2) . . . Each county . . . is hereby empowered,
    by county ordinance, to make any changes in such
    retirement system which hereafter may be deemed
    necessary or desirable for the continued operation of
    such retirement system, but no such change shall
    operate to diminish or impair the annuities, benefits
    or other rights of any person who is a member of such
    retirement system prior to the effective date of any
    such change.
§ 2, ch. 405, Laws of 1965.

    ¶28     Plaintiffs      rely     on       the     restrictive      legislative
language, "no such change shall operate to diminish or impair

the annuities, benefits or other rights of any person who is a

member of such retirement system prior to the effective date of

any such change."     Id.    They contend that although the home rule

statute granted Milwaukee County authority to change benefits,

Milwaukee    County   could        not    eliminate        or     reduce    benefits

subsequent to an employee's membership in MCERS because of the
1965 legislative restriction.

                                         15
                                                                                  No.    2012AP2490



       ¶29     However,      at     the    time    of       the    home     rule    delegation,

MCERS    had    nothing       to    do     with    health         insurance.            MCERS    was

contained solely within MCGO Chapter 201.                                The 1967 MCGO that

set    out   Milwaukee       County's       rights          and    responsibilities          under

home rule powers of MCERS contains not one word about health

insurance.           MCGO    ch.    201     (1967).           Therefore,         the     statutory

admonishment that plaintiffs contend prevented Milwaukee County

from    changing      its     employee       health         insurance       actually       had    no

application to health insurance.                            Stated otherwise, the home

rule statute does not support plaintiffs' contention that the

County violated a vested contract right when reimbursement of

Medicare Part B premiums for retired employees was prospectively

eliminated.            Backing       up     just        a    bit     in     our     chronologic

consideration of ordinances will help further to explain why

that is so.

       ¶30     Effective      January 1,           1955,          Milwaukee       County     first

began to provide health insurance to employees.                               MCGO § 17.14(8)

(1955).        The    provision       of    health          insurance      was     not    part   of
MCERS, which was enacted in 1938.                            In 1955, MCERS was still

controlled      by     the    State.         However,          Milwaukee         County    health

insurance      was     an    independent          action      by     the    County,       not    one

controlled      by     the    State,       and     it       did    not     apply    to     retired

employees       as    MCERS        did.      Stated          otherwise,       County       health

insurance was on a totally separate and independent track from

MCERS.       Health insurance was provided in MCGO Chapter 17, the

"Classification         and        Salary     Standardization               Ordinance,"          not


                                              16
                                                                         No.    2012AP2490



through     the    "Milwaukee       County        Employees       Retirement      System"

ordinance, MCGO Chapter 201.

      ¶31   Furthermore, as is apparent from the dates, in 1955,

Milwaukee County independently began providing health insurance

to its employees before the State granted Milwaukee County home

rule powers over MCERS in 1965.                        In addition, as the County

points out in its brief, the home rule amendment was "passed

years     before    the    County     had        any    retiree     health      insurance

program."

      ¶32   The County's assertion is correct because it was not

until 1967 that Milwaukee County first began including retired

employees    in     its   health     insurance         program.      MCGO      § 17.14(7)

(1967).     Milwaukee County explained that its 1967 ordinance was,

"To     repeal     and    recreate     section          17.14(7)    of    the     General

Ordinances of Milwaukee County, as amended . . . relating to the

Blue Cross-Medicare Programs so as to make such programs fully

paid for both employes and persons on the retirement rolls."

      ¶33   Once again, the County's provision of health insurance
was not part of MCERS, which was set out in MCGO Chapter 201.

Health insurance, controlled by the County, was on a separate

and independent track from pension and death benefits addressed

in MCERS.        Stated otherwise, the State never controlled health

insurance as it once controlled the pension and death benefits

found in MCGO Chapter 201; therefore, the home rule amendment

had no effect on whether the County could alter the terms under

which it would reimburse working employees for Medicare Part B
premiums when they retire.
                                            17
                                                                        No.    2012AP2490



     ¶34    Terms on which Milwaukee County has provided health

insurance       to   its    employees     and       retired   employees       have   been

modified many, many times since 1967.14                    As we earlier mentioned,

plaintiffs       rely       heavily   on     the       1996    amendment       to    MCGO

§ 17.14(7)(h).         We now consider that amendment.

     ¶35    The      1996    amendment     to       MCGO   § 17.14(7)(h)      provides:

"The provisions of this subsection are considered a part of an

employee's vested benefit contract as more fully set forth in

201.24(5.[10])."           MCGO § 201.24(5.10) (1996) provides:

          Members   who  retire  with   sufficient  pension
     service credit as noted in chapter 17 of the Code, or
     the appropriate labor agreement, shall be provided
     with paid health insurance as noted in chapter 17 of
     the Code, however such benefit shall not be funded via
     the pension fund.
     ¶36    We       are    unpersuaded      that     MCGO    § 17.14(7)(h)         (1996)

accords plaintiffs a vested contract right requiring Milwaukee

County     to    pay       Medicare   Part      B     premiums   upon      plaintiffs'

retirement for a number of reasons.

     ¶37    First, although MCGO § 201.24(5.10) is part of MCERS,

it does not cause health insurance to become part of MCERS as

pension and death benefits are.                 Rather, § 201.24(5.10) confirms

and maintains the separate tracks of MCERS and health insurance

that they have always had.              Section 201.24(5.10) plainly states

that health insurance is controlled by MCGO Chapter 17.                                 It

explains that health insurance is "as noted in chapter 17 of the

Code."      Section         201.24(5.10)      does     not    provide    that       health

     14
          See, e.g., note 13.

                                           18
                                                                                No.       2012AP2490



insurance comes within the restrictions of MCERS, but rather it

comes within the restrictions of "chapter 17 of the Code."                                       In

addition, § 201.24(5.10) affirms that Milwaukee County's funding

of    health    insurance    will       not    be       an    obligation        of    the    MCERS

pension fund, again separating the provision of health insurance

from pension and death benefits accorded in MCERS.

       ¶38     Second, prior to amending MCGO § 17.14(7)(h) in 1996,

the director of human resources for Milwaukee County summarized

the proposed ordinance revisions in a memorandum provided to

members of the personnel committee.                          The summary explained that

the    "revisions     related      to    the       provision       of    health       insurance

after retirement to retirees with 15 or more years of pension

service credit is being proposed only to clarify the fact that

the benefit is a vested benefit."                            (Emphasis added).              Stated

otherwise,      the   revision's        reference            to   "an   employee's          vested

benefit      contract"   related        only       to    retired        employees,         because

once    employees     retired      with       the       requisite       years        of    pension

service credit, health insurance was a vested benefit for them.
       ¶39     Third, the County unilaterally offered to continue to

reimburse retired employees for Medicare Part B premiums after

they retire if they:           (1) reached retirement age; (2) provided

15 or more years of credited county service; and (3) retired

before the dates established by Milwaukee County in its offer.

The    plaintiffs     did    not    convert         this       offer     into    a    bilateral

contract by accepting the County's terms.

       ¶40     To explain:    When one party makes a promise to provide
a benefit and only that party is subject to a legal obligation
                                              19
                                                                      No.     2012AP2490



arising      from    the     promise,    no    bilateral       contract      is    made.

Paulson v. Olson Implement Co., 107 Wis. 2d 510, 517 n.6, 319

N.W.2d    855      (1982).      A   bilateral       contract     arises      when    the

promisee accepts the offer by performing the acts requested by

the promisor.        Loth, 315 Wis. 2d 35, ¶28.

       ¶41    As    we   have   explained,     "the      terms   of   an    employer's

unilateral offer are important in determining how an employee

may accept the offer and give rise to a binding contract."                           Id.,

¶31.     Stated otherwise, upon an employer's conditional promise

of a benefit, an employee becomes eligible for the benefit.                          The

eligibility for the benefit vests as a contract right when the

employee meets all the conditions the employer established to

confer the benefit.          Id., ¶47.

       ¶42    Plaintiffs had an opportunity to receive Medicare Part

B reimbursement upon retirement, but they chose not to avail

themselves of that opportunity.                In this regard, we concur with

the conclusion of the court of appeals that plaintiffs were

required to take three steps in order to secure the opportunity
of MCGO § 17.14(7)(dd):             (1) reach retirement age; (2) provide

15 or more years of credited county service; and (3) retire

before    the      dates   established        by   Milwaukee     County.           Simply

stated,      plaintiffs      were   eligible       for   the   benefit      they    seek;

however, they chose not to satisfy the necessary conditions to

cause the opportunity Milwaukee County provided to ripen into a

vested contract right during the period of time the opportunity

was available.


                                          20
                                                                    No.    2012AP2490



      ¶43   Our conclusion in this regard is consistent with our

opinion in Loth, wherein we held that in order to receive the

health insurance Loth sought, he had to reach retirement age,

provide 15 years or more of credited City service, and retire.

Id., ¶6.

      ¶44   Fourth, County payment for health insurance premiums

is not defined in a fixed way such that a County payment is tied

to a specified benefit that always will follow.                 For example, an

employee could not understand that the dollar amount of County-

paid premiums will accord the same benefits to employees, or

retired employees, year after year.               Rather, by their nature,

health insurance benefits have always been fluid opportunities

available for a limited period of time, which an employee may

realize if he or she takes all actions necessary to convert the

opportunity into an entitlement during the period in which it is

available.    Id. (explaining that Loth had to meet the conditions

necessary    to   obtaining    the    health     insurance      plan      he    sought

before the plan was amended).               Accordingly, health insurance
benefits    and   the   premiums     necessary    to    achieve     them        can    be

changed prospectively, as they have many, many times through the

health   insurance      that   Milwaukee    County      has    offered         to   both

employees and retirees since 1967.

      ¶45   Fifth, County health insurance payments are not earned

in increments as employees continue their employment.                          Rather,

the   insurance    provides     opportunities      that       the   County          makes

available for limited periods of time.            Id.


                                       21
                                                                             No.    2012AP2490



       ¶46    Plaintiffs          have     attempted       to    distinguish        Loth      by

arguing that entitlement to retiree reimbursement for Medicare

Part B premiums vests immediately upon commencing employment in

three primary ways:                  (1) applicability of session laws; (2)

characterizing health insurance as a vested contract right that

the County is not free to abrogate; and (3) offering alternative

theories found in Rehrauer and Welter.                           We have addressed the

effect of the session laws and the nature of the contractual

opportunity for reimbursement of Medicare Part B premiums for

retirees     in     regard      to      plaintiffs'       claim.        We    now    take     up

plaintiffs' remaining argument.

                                C.      Welter and Rehrauer

       ¶47    Plaintiffs          argue    that       instead    of    Loth,      Welter     and

Rehrauer control.              The court of appeals declined to discuss or

distinguish these cases, except to agree with the circuit court

"that Loth appears at odds with both Welter . . . and Rehrauer,

and that      Loth       discussed neither decision."                   Wis. Fed'n, 351

Wis. 2d 421, ¶11.               Welter reasoned that statutory provisions
that created duty disability pension rights for police officers

vested    those         pension      rights      immediately       upon      an    employee's

membership         in    the      City     of    Milwaukee's          retirement         system.

Welter,      214    Wis. 2d        at     488.        Rehrauer     concluded        that     the

firefighters acquired vested duty disability pension rights that

were     contractually          established           during    the     course      of     their

employment.        Rehrauer, 246 Wis. 2d 863, ¶1.

       ¶48    In        Welter,       police      officers        eligible         for      duty
disability         pensions          claimed      that     the     applicable            service
                                                 22
                                                                 No.   2012AP2490



retirement allowance conversion age was the age that was in

effect when they began employment.             Welter, 214 Wis. 2d at 488.

They argued that application of a lower conversion age, enacted

by municipal ordinance after the officers began employment, was

a breach of the vested contract right to the higher conversion

age.     Id. at 488.       The court of appeals rejected the City's

argument that an officer's right to a disability pension does

not vest until he or she becomes disabled and agreed with the

police officers.       Id. at 494-95.

       ¶49   In Rehrauer, a contract in effect from 1972 to 1977

established       lifetime      duty     disability      pensions,     allowing

firefighters      to   avoid   an   eventual       conversion   to   the   lesser

service retirement allowance.            Rehrauer, 246 Wis. 2d 863, ¶¶2, 3

n.3.     After that period, duty disability pensions were again

converted    to    service     retirement     allowances.       Id.,   ¶3   n.3.

Firefighters hired before the 1972 contract period and beginning

receipt of duty disability pension after 1977 claimed vested

rights in the lifetime duty disability pension, which was the
highest level of pension benefits contractually established at

any time during the course of plaintiffs' active duty.                       Id.,

¶¶2-3 n.3, 5, 7.         The court of appeals held the firefighters

gained "vested rights in subsequently-negotiated benefits, at

the highest level contractually established at any time during

the course of active duty."            Id., ¶11.

       ¶50   Before us, plaintiffs characterize Welter and Rehrauer

as directly supporting the immediate vesting of rights to health
insurance terms and conditions upon hiring, asserting that they
                                         23
                                                                                 No.    2012AP2490



involved       bilateral       contracts          founded      on        statutory          language

substantially        identical        to    chs.       138    and    405       that    plaintiffs

claim     is    applicable          here.         Although          we     could       draw       many

distinctions between plaintiffs' claims and those presented in

Welter and Rehrauer, it is sufficient to say, as the County has

argued, that both Welter and Rehrauer are pension cases, rather

than health insurance cases and the rights asserted in Welter

and Rehrauer arose from the City of Milwaukee's pension plan,

not a Milwaukee County health insurance plan.                              Stated otherwise,

neither       Welter    nor     Rehrauer         involves        health        insurance,           the

nature of which as we have explained, is a fluid opportunity for

a limited period of time.

       ¶51     Health     insurance,         found       in    MCGO       § 17.14       is     on    a

separate and independent track from pension rights established

in MCERS.        As we have detailed above, the laws relied on by

plaintiffs that arguably could be applicable to MCERS do not

apply    to     or   affect      Milwaukee            County's       provision         of     health

insurance.
                                     III. CONCLUSION

       ¶52     We conclude that Milwaukee County did not abrogate a

vested contract right when it prospectively modified a health

insurance       benefit    it       offered      for     employees         who    had       not     yet

retired.        We     further      conclude          that    County      employees          have     a

vested contract right to Medicare Part B premium reimbursement

when    they    fulfill       all    three       criteria      for       its    payment:            (1)

reaching       retirement      age;     (2)      providing          15   or     more    years       of
credited       county    service;          and    (3)    retiring         before       the    dates
                                                 24
                                                           No.     2012AP2490



established by Milwaukee County.       Employees who did not meet all

three criteria have not fulfilled the requirements necessary to

establish a vested contract right to reimbursement.              Therefore,

we affirm the decision of the court of appeals that granted

summary judgment to Milwaukee County.

    By   the   Court.—The   decision   of   the   court   of     appeals   is

affirmed and the cause remanded to the circuit court to dismiss

the complaint.




                                  25
                                                                         No.      2012AP2490.dtp


       ¶53     DAVID     T.   PROSSER,      J.       (concurring).           This     case   is

more difficult than Loth v. City of Milwaukee, 2008 WI 129, 315

Wis. 2d 35, 758 N.W.2d 766, and Stoker v. Milwaukee County, 2014

WI 130, ___ Wis. 2d ___, 857 N.W.2d 102.                            Because the result

here    appears      to   be    unfair,        I    have    attempted        to     find   some

reasonable ground to distinguish this case from Loth and Stoker

in     order    to     preserve      a     right——at        least      for     some     county

employees——to receive the promised benefit of Medicare Part B

premium reimbursement sometime in the future.

       ¶54     This good faith effort has failed.                      Without resort to

the surrounding statutes and ordinances, this case is governed

by Loth.        Turning to those statutes and ordinances, there is a

disconnect between the language of the statutes and ordinances

and    the     reality    of   the       situation.         It    is   not     possible      to

conclude that county employees like Schwegel and Jaskulski have

vested rights to Medicare Part B premium reimbursement before

they    retire——indeed         from      the       time    they   were       hired——without

gravely impairing a county government's ability to manage its

fiscal affairs.

       ¶55     In 1945 the legislature approved Chapter 138, Laws of

1945.     The statement of LEGISLATIVE POLICY in the act reads as

follows:

            Employes have been attracted to and have remained
       in the public service in counties of more than 500,000
       population despite the prevailing higher wages in
       other employments because of the deferred compensation
       for their services promised to them in the form of
       retirement annuities and death benefits in the
       retirement system to which they have been admitted as
       contributing members.   The purpose of this act is to
       strengthen the public service in the most populous
                                               1
                                                                      No.   2012AP2490.dtp

       counties of the state by establishing the security of
       such retirement and death benefits.
       ¶56    Some of the premises in this statement of policy are

no longer accurate.              Prevailing wages in other employments are

not    always    higher      than    in    county      service.       Public     employee

benefits are no longer limited to retirement and death benefits

and    may    reach       very   substantial      amounts.        Some      more    modern

benefits, like those in question here, might be obtained only

after    15   or      more   years    of    service.       Thus,      the   protections

outlined in 1945 may not square with the reality of contemporary
benefits, as those protections do not fully contemplate modern

benefit innovations.              As a result, the legislature's policy of

providing security to public employee benefits——declared some

seven decades ago——appears to have been greatly complicated and

undermined by modern developments.

       ¶57    What is so frustrating today is that there appears to

be no middle ground for courts between jeopardizing the public

fisc    by    expansive,         unreasonable       interpretations         of   outdated

statutes and permitting counties to break faith with many public

employees by relying strictly upon technical rules.
       ¶58    Years       ago,   Congress    passed      the   Employee       Retirement

Income Security Act (ERISA) to protect private employees who

participate          in   pension     plans.         Something        similar      may   be

necessary       in    Wisconsin      so    that   we    can    step    back      from    the

immediacy of the fiscal crises faced by public employers and

develop a strategy to protect public finances without betraying

the trust owed to loyal public employees.
       ¶59    For the foregoing reasons, I respectfully concur.

                                             2
                                                                      No. 2012AP2490.ssa


      ¶60    SHIRLEY S. ABRAHAMSON, C.J.                 (dissenting).          When the

plaintiffs     in    the     present     case   began     their    employment         with

Milwaukee County, they became members of the Milwaukee County

Employees' Retirement System (MCERS).1                     MCERS is governed by

Chapter 201 of the Milwaukee County General Ordinances (MCGO).

      ¶61    The    language        of   the    state    session       laws     and   the

Milwaukee County ordinances governing MCERS assures that County

employees' right to receive MCERS benefits becomes vested when

the   employees      are    hired.       "Vested"       means   the    County     cannot

renege on its promises.

      ¶62    Since at least 1989, MCGO § 17.14(7)(c) has provided

certain employees with no-premium-cost coverage under Medicare

Part B when they retire.2

      ¶63    In    1996,    MCGO    § 17.14(7)(h)        was    amended    to    provide

explicitly        that     "[t]he    provisions     of     this       subsection      are

considered a part of an employee's vested benefit contract as

more fully set forth in 201.25(5.91) [sic]."3                     Section 201.25 is

part of MCGO ch. 201, which governs MCERS.




      1
          See § 2(c), ch. 138, Laws of 1945.
      2
       The majority opinion explains that provisions in MCGO
§ 17.14(7) have been renumbered since 1989.       For ease of
reading, I refer to the numbering used at the time the relevant
provisions were adopted.
      3
       As the majority opinion notes, the reference in MCGO
§ 17.14(7) to MCGO § 201.24(5.91) appears to be a drafting
error.    See majority op., ¶10 n.9.        There is no MCGO
§ 201.24(5.91).   The reference in MCGO § 17.14(7) should be to
MCGO § 201.24(5.10).

                                           1
                                                                      No. 2012AP2490.ssa


      ¶64    The    "vested     benefit      contract"     referred      to    in   MCGO

§ 17.14(7)(h)       is   the    MCERS     benefit      contract    that       Milwaukee

County enters with its employees at the time of their initial

hire.

      ¶65    In 2011, the County changed its position and amended

MCGO § 17.14(7) to provide that certain categories of Milwaukee

County employees (including the plaintiffs4) will be ineligible

for   reimbursement        of   their       post-retirement       Medicare       Part   B

premiums upon their retirement in or after 2011 or 2012.

      ¶66    The instant case revolves around the parties' dispute

about the effect and validity of the 2011 amendment.                          The issue

presented is whether County employees who began working for the

County after it agreed to reimburse employees for their post-

retirement Medicare Part B premiums and before it changed its

position     have    the    right      to        reimbursement    of     their      post-

retirement Medicare Part B premiums.                   The circuit court decided

that they do.       I agree.

      ¶67    The majority opinion rules that the County need not
keep its promise to employees.

      ¶68    Justice     David    T.    Prosser       concurs    in     the    majority

opinion, stating that a determination that the plaintiffs have a

vested right to reimbursement of their post-retirement Medicare

     MCGO § 201.24(5.10) provides:     "Members who retire with
sufficient pension service as noted in chapter 17 of the Code,
or the appropriate labor agreement, shall be provided with paid
health insurance as noted in chapter 17 of the Code, however
such benefit shall not be funded via the pension fund."
      4
          The plaintiffs were hired by Milwaukee County in 1989 and
1990.

                                             2
                                                            No. 2012AP2490.ssa


Part B premiums would "gravely impair[] a county government's

ability to manage its fiscal affairs."5

     ¶69    For the County (or anyone) to pay expenses, including

employee benefits, is burdensome.         But despite Justice Prosser's

opining     without    any   financial     data    that     upholding     the

plaintiffs' vested right to the benefits at issue in the instant

case would gravely impair Milwaukee County's ability to manage

its finances, the fact is that Milwaukee County does not defend

the disputed 2011 amendment to MCGO § 17.14(7) on the grounds of

"public     economic    emergency,"6      "great    public       calamity,"7

"extraordinary     conditions,"8   or    "urgent   public    need."9      The

instant case therefore differs from Home Bldg. & Loan Ass'n v.

Blaisdell, 290 U.S. 398, 420 (1934), in which the United States

Supreme Court upheld a Minnesota statute that allowed for the




     5
         Concurrence, ¶54.
     6
       See Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398,
420 (1934).
     7
         See id. at 439.
     8
         See id.
     9
         See id. at 440.

                                    3
                                                                       No. 2012AP2490.ssa


retroactive         impairment    of     mortgage    contracts     due     to    "public

economic emergency."10

       ¶70     Milwaukee County does not rely on a Blaisdell defense.

Rather,       Milwaukee     County     defends      the   2011   amendment       on   the

grounds      that    the    benefits     it   affects     were   not    vested.        The

majority opinion errs in accepting this argument.                        It undermines

the state legislature's recognition of the hardship imposed on

County employees unless the employees can make retirement plans

with certainty about the retirement benefits they will receive

from    the    County.       To   give    employees       certainty     and     to   avoid

imposing unnecessary hardship on them are the reasons the state

legislature vested County employees' retirement benefits in the

first place.          See § 1, ch. 138, Laws of 1945 ("The purpose of

this act is to strengthen the public service by establishing the

security       of    such    retirement       and    death   benefits"        (emphasis

added)).


       10
        The Blaisdell Court determined that while the Contract
Clause of the federal constitution generally prohibits states
from enacting laws that retroactively impair contracts, "the
prohibition is not an absolute one."        Blaisdell, 290 U.S. at
428.    The Court declared that the police power indisputably
enables    states  to    interfere   with    contracts   when    such
interference is "made necessary by a great public calamity such
as fire, flood, or earthquake."        Blaisdell, 290 U.S. at 439
(emphasis added).      The Court further declared that "[t]he
reservation of state power appropriate to such extraordinary
conditions"    is  necessarily    "a   part   of   all   contracts."
Blaisdell, 290 U.S. at 439 (emphasis added). Finally, the Court
concluded that "if state power exists to give temporary relief
from the enforcement of contracts in the presence of [natural]
disasters . . . [then]    that   power   cannot   be   said   to   be
nonexistent when the urgent public need demanding such relief is
produced by [] economic causes." Blaisdell, 290 U.S. at 439-40
(emphasis added).

                                              4
                                                                               No. 2012AP2490.ssa


      ¶71    The majority opinion is wrong on the law in three

primary respects.

      ¶72    First, instead of focusing on the state session laws

and the Milwaukee County ordinances that govern the benefits

provided      by        the     County's          retirement            system         (including

reimbursement       for       retirees'         Medicare         Part    B     premiums),      the

majority      opinion         digresses         and      emphasizes            an   unsupported

distinction        between           health     benefits          and     other        forms    of

retirement benefits.

      ¶73    The     majority          opines        that   the     County's           retirement

system and its system of providing health benefits are on two

completely        separate          tracks.11         The   majority           comes    to     this

sweeping but unconvincing conclusion without any support in the

governing state session laws, Milwaukee County ordinances, or

cases (and ignoring contrary language within them) and without

the   benefit      of    adversarial            briefs      or    argument.            Milwaukee

County's argument in the instant case centers on a trilogy of

cases described in Part III of this opinion.
      ¶74    Try as it might, the majority opinion is not credible

in its attempt at separating reimbursement of Medicare Part B

premiums from the other benefits provided by MCERS or in its

attempt at circumventing the text of the governing state session

laws and Milwaukee County ordinances.

      ¶75    Second,          the    majority        opinion      disregards           the   clear

language     of    the    governing           state    session          laws    and    Milwaukee



      11
           See majority op., ¶¶23-37, 44, 45.

                                                 5
                                                                    No. 2012AP2490.ssa


County ordinances.          The text of these laws and ordinances is

dispositive of the instant case.

     ¶76    The    language      of   the       state    session    laws    makes    it

abundantly    clear       that   upon     becoming       County     employees,       the

plaintiffs gained a vested right to the annuities and "all other

benefits" provided by MCERS.12                  This broad language does not

exclude     reimbursement        of     post-retirement          Medicare     Part     B

premiums.          The    Milwaukee       County        ordinances     incorporated

reimbursement of post-retirement Medicare Part B premiums into

MCERS.

     ¶77    The    state    session      laws      and     the    Milwaukee    County

ordinances say what they mean and mean what they say.                               They

explicitly     grant      the    plaintiffs         a    vested     right     at     the

commencement of their employment to reimbursement at retirement

of their Medicare Part B premiums.

     ¶78    Third, the majority opinion fails to reconcile three

decisions regarding the vesting of employee benefits that the

circuit    court    and    the   court    of     appeals    found    confusing       and
inconsistent: Welter v. City of Milwaukee, 214 Wis. 2d 485, 571

N.W.2d 459 (Ct. App. 1997); Rehrauer v. City of Milwaukee, 2001

WI App 151, 246 Wis. 2d 863, 631 N.W.2d 644; and Loth v. City of

Milwaukee, 2008 WI 129, 315 Wis. 2d 35, 758 N.W.2d 766.13


     12
          § 2(c), ch. 138, Laws of 1945.
     13
       While the majority opinion focuses on distinguishing
health insurance from pension and death benefits (tackling Loth
v. City of Milwaukee, 2008 WI 129, 315 Wis. 2d 35, 758
N.W.2d 766, as a mere afterthought), the County's brief focuses
primarily on these three employee benefit cases.

                                            6
                                                                       No. 2012AP2490.ssa


       ¶79     A careful reading of the three cases demonstrates that

each    turns      on     the    language      of   the   provisions    governing         the

particular employee benefits at issue and that the provisions in

Loth are significantly different from the provisions in Welter,

Rehrauer, and the instant case.

       ¶80     The      language    of    the    laws     and   ordinances    protecting

reimbursement of the plaintiffs' post-retirement Medicare Part B

premiums from diminishment by the County in the instant case is

substantially the same as the language of the state session law

protecting the employees' disability benefits from diminishment

by the City in Welter and Rehrauer.                       The disability benefits in

Welter    and        Rehrauer      were    part     of    the   City   of    Milwaukee's

retirement system and were governed by a state session law and

City    enactments,         just    as     reimbursement        of   Medicare      Part    B

premiums in the instant case is part of the County's retirement

system       and     is    governed       by    state     session    laws    and    County

enactments.

       ¶81     In contrast, the language of the City of Milwaukee
enactment governing the employee health benefits at issue in

Loth is entirely different.                     In Loth, the health benefits at

issue were not governed by state session laws and were not part

of the City's retirement system; the City enactment at issue in

Loth made no reference to the City's retirement system or to the

vesting of benefits.

       ¶82     Thus, the Loth opinion and the Loth briefs do not cite

Welter or Rehrauer because the provisions governing the benefits
at     issue       in     Loth    were     significantly        different     from    the

                                                7
                                                                             No. 2012AP2490.ssa


provisions         governing       the       benefits        at    issue     in     Welter    and

Rehrauer.

       ¶83    The state session law at issue in Welter and Rehrauer

(governing the City's retirement system) is substantially the

same   as    the     state    session         laws     governing         Milwaukee     County's

retirement         system     in    the       instant        case.         Both     Welter     and

Rehrauer, relying on the language of the governing state session

law, held that the City police officers and firefighters had a

vested right to the disability benefits at issue that could not

be diminished by city enactment.                      Welter and Rehrauer govern the

instant case; Loth does not.

       ¶84    By    declaring       that      it      will    not       reimburse    the     post-

retirement     Medicare         Part     B    premiums        of    future    retirees,       the

County      has,    in   my     opinion,          breached        the    plaintiffs'       vested

benefit contracts in violation of state session laws, Milwaukee

County ordinances, and case law precedent.

       ¶85    Accordingly, I dissent.

                                                  I
       ¶86    To reach its desired result, the majority opinion has

concocted an unsupported distinction between health benefits and

other forms of retirement benefits provided by MCERS.                                 It raises

this alleged distinction sua sponte and addresses it without the

benefit of briefs or argument by the parties.                                     It cites no

authority in the governing state session laws, Milwaukee County

ordinances,         or   case      law       to    support        its     position,     and    it

overlooks     language        in    the      governing        state      session     laws,    the
Milwaukee County ordinances, and the cases that contradicts its

                                                  8
                                                                No. 2012AP2490.ssa


position.         Finally, it speaks in overly broad terms that are

likely to have unanticipated consequences.

       ¶87    The majority opinion raises, analyzes, and adopts this

"discreteness" theory sua sponte, without giving the parties an

opportunity to participate in the discussion.                    When a court

raises an issue sua sponte, "fairness requires that the parties

have    the    opportunity     to   develop   the    relevant    facts     and   to

present legal arguments on the issue."14 The majority apparently

sees no reason to provide such an opportunity in the instant

case.

       ¶88    Thus, once again, I write to decry the court's failure

to   give     counsel   the    opportunity    to    represent    their     clients

before this court.        The majority's position shows disrespect for

the litigants and counsel.

       ¶89    I    recognize    that   some   justices     prefer     to     reach

decisions without the benefit of arguments or briefs by the

parties and apparently perceive that the rule of law is advanced

by the court's sua sponte approach.            I do not.    I prefer greater
restraint by the court and greater respect for litigants and

their counsel.       As I have stated in the past:

       [T]he rule of law is generally best developed when
       matters are tested by the fire of adversarial briefs
       and oral argument.

              . . . .

       Indeed, a court's sua sponte determination of an issue
       may raise due process considerations: A court may

       14
       Hydrite Chem. Co. v. Aetna Cas. & Sur. Co., 220
Wis. 2d 26, 49, 582 N.W.2d 423 (Ct. App. 1998) (Roggensack, J.,
dissenting).

                                        9
                                                        No. 2012AP2490.ssa

    be depriving parties of their right to a meaningful
    appeal, to due process notice, and to adversary
    counsel.15
    ¶90   I   agree   with   Justice   Ann   Walsh   Bradley   that   this

court's role is to weigh the arguments of counsel, not to make

arguments as counsel:

    By   raising  sua   sponte   a   brand  new   outcome-
    determinative issue, an appellate court tends to blur
    the lines between the role of the lawyer as advocate
    and the role of the judge as impartial decision maker.
    In contrast to the other branches of government, the
    judicial branch's role seems better fitted to respond
    to issues presented rather than creating issues to
    present.16

    15
       Maurin v. Hall, 2004 WI 100, ¶¶119-121, 274 Wis. 2d 28,
682 N.W.2d 866 (Abrahamson, C.J. & Crooks, J., concurring),
overruled on other grounds by Bartholomew v. Wis. Patients Comp.
Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216.     In Maurin,
Justice Crooks and I criticized the majority opinion for
deciding the case on the basis of a "novel interpretation of the
statutes" without first requesting supplemental briefs or
reargument.   Maurin, 274 Wis. 2d 28, ¶120 (Abrahamson, C.J., &
Crooks, J., concurring). Our concurrence stated: "We are at a
loss to understand why the majority refuses to call for
additional briefs."   Maurin, 274 Wis. 2d 28, ¶121 (Abrahamson,
C.J., & Crooks, J., concurring).
    16
        Attorney's Title Guar. Fund, Inc. v. Town Bank, 2014 WI
63,   ¶56,   355   Wis. 2d 229,  850  N.W.2d 28  (Bradley,  J.,
dissenting).

     See also Bartus v. DHSS, 176 Wis. 2d 1063, 1073, 501
N.W.2d 419 (1993) ("We therefore urge the courts to exercise
caution when determining an issue sua sponte without the
assistance of supplemental briefs and to ask for briefs unless
the matter is quite clear."); Cemetery Servs., Inc. v. Wis.
Dep't of Regulation & Licensing, 221 Wis. 2d 817, 831, 586
N.W.2d 191 (Ct. App. 1998) ("We cannot serve as both advocate
and court.   For this reason, we generally choose not to decide
issues that are not adequately developed by the parties in their
briefs.").   Accord Day v. McDonough, 547 U.S. 198, 210 (2006)
("Of course, before acting on its own initiative, a court must
accord the parties fair notice and an opportunity to present
their positions.").

                                  10
                                                                           No. 2012AP2490.ssa


      ¶91   The   majority          opinion's          sua     sponte           approach       is

especially    galling       considering         the     lack       of    support       for    the

distinction    the       majority       opinion    draws       within          MCERS   between

health insurance and pension and death benefits.

      ¶92   The infirmity of the majority opinion's distinction is

readily     apparent       in     the     many     gratuitous,             hollow-sounding

comments it offers without any citation or explanation of their

relevance to the parties' dispute.                 See, e.g., majority op., ¶44

("County payment for health insurance premiums is not defined in

a fixed way such that a County payment is tied to a specified

benefit that always will follow. . . . [B]y their nature, health

insurance     benefits          have     always       been      fluid          opportunities

available for a limited period of time . . . ."); majority op.,

¶45   ("[H]ealth          insurance        payments           are        not     earned        in

increments . . . .");            majority        op.,     ¶50           ("[P]ension         cases

[differ from cases involving] health insurance, the nature of

which . . . is       a    fluid    opportunity          for    a    limited          period   of

time.").
      ¶93   The   majority         opinion's          detour        from       the     parties'

arguments    distorts       the    text    of     the    1996       amendment          to    MCGO

§ 17.14(7)(h) and the language of § 2, ch. 138, Laws of 1945,

one of the state session laws governing the County's retirement

system.

      ¶94 The 1996 amendment contradicts the majority opinion's

assertion that health insurance for Milwaukee County employees




                                           11
                                                                              No. 2012AP2490.ssa


has been "on a separate and independent track from pension and

death benefits . . . ."17

      ¶95    Both     before        and        after     the     1996    amendment,          MCGO

§ 17.14(7)(h)       provided        that       the      "County    shall       pay     the   full

monthly cost of providing such coverage to retired members of

the County Retirement System with 15 or more years of creditable

pension service as a County employee . . . ."

      ¶96    The    text      added       to     MCGO    § 17.14(7)(h)          by     the   1996

amendment,      which      remains          in     the     current       version        of    the

ordinance, reads as follows: "The provisions of this subsection

are considered a part of an employee's vested benefit contract

as more fully set forth in 201.24(5.91) [sic]."18

      ¶97    The     "vested        benefit       contract"        to    which       the      1996

amendment refers is the vested benefit contract the County must

enter with each employee when the employee is hired.                                   See § 2,

ch. 138, Laws of 1945.               These contracts assure County employees

a   vested    right     to     all    benefits           provided       by     MCERS    at    the

employees'     time     of     hire,       rather        than     at    the     time    of    the
employees' retirement.19

      ¶98    Thus,      the     1996        amendment           expressly       puts       health

insurance and pension and death benefits on the same track by

explicitly stating that the health insurance provided by MCGO

§ 17.14(7)     is    part      of     the       "vested     benefit          contract"       MCERS

members enter at the commencement of their employment with the

      17
           Majority op., ¶33.
      18
           MCGO § 17.14(7)(h) (1996) (emphasis added).
      19
           § 2(c), ch. 138, Laws of 1945.

                                                 12
                                                                               No. 2012AP2490.ssa


County.20      MCGO § 17.14(7)(h) affirms that the particular health

benefit       at     issue         in     the    instant          case     comes    within      the

restrictions of MCERS.                   The majority opinion's conclusion at ¶37

that the 1996 amendment means that health insurance is part of

MCERS but not subject to the restrictions imposed on MCERS is

specious.

      ¶99     The director of human resources' summary of the 1996

amendment (cited in ¶38 of the majority opinion to support its

position) states:

      The revisions related to the provisions of health
      insurance after retirement to retirees with 15 or more
      years of pension service credit is being proposed only
      to clarify the fact that the benefit is a vested
      benefit.
      ¶100 The majority opinion emphasizes the word "retirees"

and misinterprets the sentence to give employees vested rights

to   the    health       benefits          at   issue        only     at   retirement.         Read

rationally         in   the    context          of    MCGO       § 17.14(7)(h)      and   in    the

broader context of MCERS, the 1996 amendment and the director's

comment can mean only one thing for the plaintiffs: They gained

a    vested        right      to        reimbursement            of   their    post-retirement

Medicare Part B premiums when they began their employment; to

take advantage of this benefit, they must meet the enumerated

prerequisites at retirement.

      ¶101 The          majority         opinion          also   garbles      the   language    of

§ 2(c), ch. 138, Laws of 1945.                            This state session law, which

governs     MCERS,         explicitly           states       that     future    MCERS     members


      20
           MCGO § 17.14(7)(h) (1996).

                                                     13
                                                                         No. 2012AP2490.ssa


"shall have a . . . vested right in the annuities and all other

benefits . . . as provided in the law under which [MCERS] was

established as such law shall have been amended and be in effect

at the date of commencement of his [or her] membership."21

       ¶102 The broad and inclusive reference in Chapter 138, Laws

of   1945,        to   "all    other     benefits"     and    the   broad    language    in

Chapter 138 acknowledging that the benefits provided by MCERS

will    change         over    time    demonstrate     clearly      that    the   benefits

provided by MCERS can include newly adopted health benefits.

The majority opinion's contrary conclusion at ¶26 is unsupported

by the governing state session laws.22

       ¶103 In         2011,    MCGO     § 17.14(7)     was    again     amended.       The

instant       case      revolves      around   the    parties'      dispute     about   the

effect and validity of this 2011 amendment.                         The 2011 amendment

states, among other things, that certain categories of County

employees         (including       the    plaintiffs)        will   be   ineligible     for

reimbursement of their post-retirement Medicare Part B premiums

upon their retirement in or after 2011 or 2012.
       ¶104 The          majority      opinion       upholds    the      2011     amendment

without a convincing analysis of the applicable state session

laws        and    the    Milwaukee        County      ordinances        protecting     the

plaintiffs.

       21
            § 2(c), ch. 138, Laws of 1945 (emphasis added).
       22
       See also ch. 405, Laws of 1965, granting Milwaukee County
home rule and empowering it to make changes to the retirement
system "by county ordinance" so long as no change "diminish[es]
or impair[s] the annuities, benefits or other rights of any
person who is a member of such retirement system prior to the
effective date of such change."

                                               14
                                                                               No. 2012AP2490.ssa


       ¶105 Finally, reimbursement of qualified retirees' Medicare

Part    B   premiums         is    not    the     only       health    benefit        granted      by

Milwaukee County to retirees.                        The majority opinion is broadly

written.         Such a broad opinion is apt to have unanticipated

ramifications.

       ¶106 In         sum,        the         majority         opinion's         attempt           at

distinguishing health benefits at retirement from other kinds of

benefits     at       retirement         falls       flat.       The    majority       opinion's

failure     to    give       the    parties       an    opportunity       to     address        this

alleged distinction, the lack of support for its position in the

governing state session laws and Milwaukee County ordinances,

its failure to acknowledge contradictory language in those laws

and    ordinances,          and    its     sweeping       characterization            of     health

insurance        as    separate          and     distinct       from     MCERS     render          the

majority opinion wholly unconvincing.

                                                II

       ¶107 The        majority          opinion's           disregard     for        the       clear

language     of       the    governing         state     session       laws     and    Milwaukee
County      ordinances            extends        beyond        its     discussion          of      the

supposedly        inherent         difference          between       health     insurance          and

pension and death benefits.                      The laws and ordinances governing

reimbursement          for    retired          County    employees'       Medicare          Part     B

premiums are in fact dispositive of the instant case.

       ¶108 The       governing          state       session    laws     and    the    Milwaukee

County ordinances make it abundantly clear that upon joining the

County's retirement system, the plaintiffs gained a vested right
to     reimbursement         of     their        post-retirement          Medicare          Part     B

                                                  15
                                                                             No. 2012AP2490.ssa


premiums.         Further, under the clear language of the laws and

ordinances, Milwaukee County may change MCERS so long as no

change diminishes or impairs the vested rights of MCERS members.

       ¶109 The 2011 Milwaukee County ordinance amendment at issue

in the instant case states, among other things, that certain

categories of County employees (including the plaintiffs) will

be     ineligible        for     reimbursement            of    their        post-retirement

Medicare Part B premiums upon their retirement in or after 2011

or 2012.          The 2011 amendment diminishes or impairs the vested

rights of then active MCERS members (including the plaintiffs)

and is therefore invalid as applied to them.

       ¶110 The        texts    of       the    governing      state    session      laws     and

Milwaukee County ordinances are dispositive.                            I first summarize

the    state      session      laws       and    Milwaukee       County       ordinances       in

chronological          order    and       then    discuss      them    more       fully.      The

Milwaukee         County       ordinances         govern       MCERS        and     have     made

reimbursement of Medicare Part B premiums part of MCERS (see E,

below), but the ordinances must comport with the state session
laws        dating     back    to        1937    that     protect       Milwaukee          County

employees' vested contract rights (see A-D, below).

             A.   Chapter 201, Laws of 1937, required Milwaukee County

                  to   develop       a    retirement      system      for    its    employees.

                  Pursuant      to       this     law,    Milwaukee         County     created

                  MCERS.23




       23
       Stoker v. Milwaukee                       Cnty.,     2014       WI    130,     ¶5,     ___
Wis. 2d ___, 857 N.W.2d 102.

                                                 16
                                                                  No. 2012AP2490.ssa


     B.   Chapter      138,    Laws    of         1945,     declared      that     the

          legislative policy underlying MCERS is to recruit and

          retain County employees by establishing the security

          of   their     retirement        and    death     benefits.24        "[T]he

          legislature required employee benefits under MCERS to

          'be assured by benefit contracts.'"25                        Chapter 138

          also   provided      that    at        the     commencement     of     their

          employment with the County, County employees become

          members of MCERS and have a "vested right in the

          annuities and all other benefits . . . [provided by]

          the law under which [MCERS] was established as such

          law shall have been amended and be in effect at the

          date   of      commencement        of        [their]    membership      [in

          MCERS]."26

     C.   Chapter 326, Laws of 1957, provided that "a member of

          MCERS has a 'vested right . . . to all increases in

          benefits covered by amendments subsequent to the date

          his [or her] membership [in MCERS] is effective.'"27
     D.   Chapter      405,    Laws    of        1965,    granted    "home       rule"

          authority to Milwaukee County over MCERS and provided

          that "the future operation of each [county] benefit

          fund      is     a     matter           of      local     affair        and


24
     See id., ¶5 n.7.
25
     Id., ¶5 (quoting and citing ch. 138, Laws of 1945).
26
     Id. (quoting and citing ch. 138, Laws of 1945).
27
     Id., ¶6 (quoting and citing § 6, ch. 326, Laws of 1957).

                                      17
                                                                           No. 2012AP2490.ssa


               government . . . ."                    It    also   "empowered      Milwaukee

               County 'to make any changes in [its employee] benefit

               fund    which     hereafter            may     be     deemed    necessary      or

               desirable for the continued operation of [MCERS],"

               but limited the County's authority by providing that

               "no such change shall operate to diminish or impair

               the annuities, benefits or other rights of any person

               who is a member of [MCERS] prior to the effective

               date of any such change."28

          E.   MCERS       is    also           governed        by     Milwaukee        County

               ordinances.            As    I    discussed         previously,        the   1996

               amendment         to         MCGO           § 17.14(7)(h)       incorporated

               reimbursement of the premium costs of Medicare Part B

               into MCERS by clarifying that such health benefits

               are "part of an employee's vested benefit contract."

               As   part    of    MCERS,         the       benefits     provided      by    MCGO

               § 17.14(7)(c)          and       (h)    are    subject     to    the    vesting

               provision in Chapter 138, Laws of 1945; Chapter 326,
               Laws of 1957; and the home rule limiting provision in

               Chapter 405, Laws of 1965.

                                                 A

     ¶111 Chapter 201, Laws of 1937, required Milwaukee County

to develop a retirement system for its employees for payment of

benefits.      Pursuant to this law, Milwaukee County created the

Milwaukee County Employees' Retirement System (MCERS).29

     28
          Id., ¶7 (quoting and citing § 6, ch. 405, Laws of 1965).
     29
          See id., ¶5.

                                                18
                                                  No. 2012AP2490.ssa


                                B

     ¶112 I turn to the vesting provisions in Chapter 138, Laws

of 1945.   This state session law provides that Milwaukee County

employees become members of MCERS at the commencement of their

employment with the County and gain a vested right at that time

in "the annuities and all other benefits . . . as provided in

the law under which [MCERS] was established as such law shall

have been amended and be in effect at the date of commencement

of [their] membership [in MCERS]."30

     ¶113 The most important aspects of Chapter 138, Laws of

1945, for the instant case are its use of the phrase "vested

rights" and its recognition that MCERS will change over time

with future benefits inuring to employees.

     ¶114 The phrase "vested rights" has a common usage in the

law; it is a technical legal phrase.   Under the general rules of

statutory interpretation adopted by the legislature, the phrase

is interpreted in conformance with its common usage (here, in




     The relevant text of Chapter 201 is as follows:

     In each county having a population of five hundred
     thousand or more a retirement system shall be
     established and maintained for the payment of benefits
     to the employes of such county and to the widows and
     children of such employes . . . . The funds of the
     retirement system shall be derived, administered and
     disbursed in accordance with the provisions of this
     act.
     30
       Stoker, ___ Wis. 2d ___, ¶5 (quoting and citing ch. 138,
Laws of 1945). See also id., ¶22.

                                19
                                                                  No. 2012AP2490.ssa


the   law)      and   is   given    its      technical   legal   meaning.31     The

majority        opinion    offers   a     legal   meaning,   stating    that   "[a]

vested contractual right is one that cannot be abrogated without

breaching the contract from which it arises."32                     The majority

opinion fails, however, to apply the definition it provides.

      ¶115 Despite the clear language in Chapter 138 providing

the plaintiffs with a vested right to the benefits provided by

MCERS      at   the   commencement      of    their   employment,   the   majority

opinion concludes that the plaintiffs' right to reimbursement of

their post-retirement Medicare Part B premiums never vested.

      ¶116 The relevant text of Chapter 138, Laws of 1945, is as

follows (emphasis added):

      (2) CONTRACTS TO ASSURE BENEFITS.      The benefits of
      members, whether employes in service or retired as
      beneficiaries,   and  of   beneficiaries  of   deceased
      members in the retirement system created by ch. 201,
      Laws of 1937, as amended, shall be assured by benefit
      contracts as herein provided:


      31
       See Wis. Stat. § 990.01(1) (2011-12) ("All words and
phrases shall be construed according to common and approved
usage; but technical words and phrases and others that have a
peculiar meaning in the law shall be construed according to such
meaning."). All subsequent references to the Wisconsin Statutes
are to the 2011-12 version unless otherwise indicated. See also
Volvo Trucks N. Am. v. DOT, 2010 WI 15, ¶36, 323 Wis. 2d 294,
779 N.W.2d 423 ("Technical words or phrases in a statute should
be given their technical or specialized meaning.").
      32
       See majority op., ¶3, n.5.     According to Black's Law
Dictionary, a vested right is also one that is "complete and
consummated, and of such character that it cannot be divested
without the consent of the person to whom it belongs." Black's
Law Dictionary 1564 (6th ed. 1990). The 1999 edition of Black's
Law Dictionary defines vested as "a completed, consummated right
for present or future enjoyment; not contingent, unconditional;
absolute."

                                             20
                                                            No. 2012AP2490.ssa

     (a) . . . The     annuities     and     all     other
     benefits . . . shall be obligations of such benefit
     contract on the part of the county . . . and each
     member and beneficiary having such a benefit contract
     shall have a vested right to such annuities and other
     benefits and they shall not be diminished or impaired
     by subsequent legislation or by any other means
     without his [or her] consent.

            . . . .

     (c) Every future entrant who shall become a member of
     this retirement system after the effective date of
     this act shall have a similar benefit contract and
     vested   right  in   the   annuities   and all  other
     benefits . . . as provided in the law under which the
     retirement system was established as such law shall
     have been amended and be in effect at the date of
     commencement of his [or her] membership.
                                       C

     ¶117 In     1957,    the   legislature    again    affirmed     Milwaukee

County employees' vested right to MCERS benefits.               Chapter 326,

Laws of 1957, provides that a member of MCERS has a "vested

right . . . to all increases in benefits covered by amendments

subsequent to the date his [or her] membership [in MCERS] is

effective."33

                                       D

     ¶118 Chapter        405,   Laws   of    1965,     grants   "home      rule"

authority to Milwaukee County over MCERS and empowers Milwaukee

County    "to   make   any   changes   [by   county    ordinances]    in   [its

employee] benefit fund which hereafter may be deemed necessary

or desirable for the continued operation of [MCERS]."                   Chapter

405 of the 1965 Laws limits this grant of home rule authority by


     33
       Stoker, ___ Wis. 2d ___, ¶6 (quoting and citing § 6, ch.
326, Laws of 1957). See also id., ¶22.

                                       21
                                                          No. 2012AP2490.ssa


providing that "no such change shall operate to diminish or

impair the annuities, benefits or other rights of any person who

is a member of [MCERS] prior to the effective date of any such

change."34

     ¶119 In    other   words,   Milwaukee     County   has   authority   to

reduce the benefits provided to           future   employees but not to

reduce the vested benefits of persons in the County's employ

prior to the effective date of the reduction.             This court held

in Stoker v. Milwaukee County, 2014 WI 130, ___ Wis. 2d ___, 857

N.W.2d 102,    that   the   limit   on    Milwaukee   County's   home   rule

authority allows it to reduce a benefit that has not vested but

does not allow the County to reduce a benefit that has vested.35

     ¶120 The relevant text of Chapter 405, Laws of 1965, is as

follows:

     Each county which is required to establish and
     maintain a benefit fund pursuant to this act is hereby
     empowered by county ordinance, to make any changes in
     such benefit fund which hereafter may be deemed
     necessary or desirable for the continued operation of
     such benefit fund, but no such change shall operate to
     diminish or impair the annuities, benefits or other
     rights of any person who is a member of such benefit
     fund prior to the effective date of any such change.36
                                     E




     34
       Stoker, ___ Wis. 2d ___, ¶7 (quoting and citing § 6, ch.
405, Laws of 1965). See also id., ¶22.
     35
          Id., ¶¶24, 25, 27, 28, 29.
     36
          § 1, ch. 405, Laws of 1965 (emphasis added).

                                     22
                                                                      No. 2012AP2490.ssa


     ¶121 In addition to the aforementioned state session laws,

Milwaukee County ordinances govern MCERS.37

     ¶122 The significant ordinance is MCGO § 17.14(7).                             As I

explained previously, in 1996, MCGO § 17.14(7)(h) was amended to

clarify    that   the     health    benefits      provided       by   subsection      (7)

(including MCGO § 17.14(7)(c) governing reimbursement of post-

retirement Medicare Part B premiums) are part of the "vested

benefit    contract"      MCERS     members     enter     upon    commencing        their

employment     with      the    County,    "as     more     fully     set    forth     in

201.25(5.91) [sic]."

     ¶123 In      sum,    the    laws     and   ordinances       at    issue   in    the

present case could not be clearer: The plaintiffs' right to

reimbursement of their post-retirement Medicare Part B premiums

vested at the commencement of their employment with the County.

Chapter    138,   Laws     of   1945,     and    Chapter    405,      Laws   of     1965,

prohibit Milwaukee County from diminishing or impairing vested

rights.     Yet the 2011 amendment to MCGO § 17.14(7) does just

that.     Consequently, the 2011 amendment breached the plaintiffs'
vested    benefit     contracts,        violated      the    governing       laws     and

ordinances, and is invalid.

     ¶124 As in Stoker, the majority opinion in the instant case

is able to reach its conclusion that no breach of contract or

violation    of     law    exists    only       "by   repeatedly        ignoring     the

language of the governing session laws."38


     37
       See Stoker, ___ Wis. 2d ___, ¶¶8, 10, 11, 12 (discussing
Milwaukee County ordinances relating to MCERS).
     38
          Stoker, ___ Wis. 2d ___, ¶48 (Bradley, J., dissenting).

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                                                III

       ¶125 The          third    significant         legal    error     in     the   majority

opinion is its failure to reconcile three precedential opinions

regarding the vesting of employee benefits.                              The circuit court

and    the       court    of     appeals      characterized        the    following      three

opinions         as    confusing        and     inconsistent:        Loth       v.    City   of

Milwaukee, 2008 WI 129, 315 Wis. 2d 35, 758 N.W.2d 766; Welter

v. City of Milwaukee, 214 Wis. 2d 485, 571 N.W.2d 459 (Ct. App.

1997); and Rehrauer v. City of Milwaukee, 2001 WI App 151, 246

Wis. 2d 863, 631 N.W.2d 644.

       ¶126 The          County's       position      and     argument     in    this    court

revolve around these three cases.

       ¶127 A         careful     examination         of    this   trilogy      demonstrates

that the three opinions are consistent with each other, support

the position I espouse, and govern the instant case.

       ¶128 The majority opinion claims it is following Loth, but

it is in fact inconsistent with Loth.                          The majority opinion is

also    inconsistent             with    Welter       and   Rehrauer.           The   majority
opinion in the instant case errs when it concludes that the

plaintiffs' rights under MCGO § 17.14(7) do not vest until the

plaintiffs reach retirement age, provide 15 years or more of

credited County service, and retire.39

       ¶129 I begin by examining Loth, the only case the majority

views       as   controlling.            Loth   is     instructive        and    supports    my

position.



       39
            See majority op., ¶¶42-43.

                                                24
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       ¶130 Loth        turns on the language of a City of Milwaukee

resolution that governs the particular employee health benefits

at issue in that case.                 Loth correctly insists that "the terms

of an employer's . . . offer are important in determining how an

employee         may   accept       the    offer      and   give     rise    to    a   binding

contract."40

       ¶131 In         Loth,    a     city      resolution      extended      paid     retiree

health insurance coverage to employees who fulfilled enumerated

prerequisites.           The City never incorporated its retiree health

insurance         program      into    vested        benefit    contracts     or     otherwise

indicated         at   any     time       or    in    any   other    way     during     Loth's

employment that he had a contractual (let alone vested) right to

paid        retiree      health        insurance         before      he     fulfilled       the

prerequisites set forth in the resolution.

       ¶132 The        Loth     court      interpreted         the   City    resolution      as

dictating that the City's offer of paid retiree health insurance

could       be    accepted      only       by    an    employee's         retiring     at   the

appropriate age with the requisite years of service.                                 The court
stated:          "The City and Loth never formed a contract obligating

the City to provide Loth with no-premium-cost retirement health

insurance benefits before Loth retired."41

       ¶133 The majority opinion proclaims its consistency with

Loth and concludes that because the plaintiffs in the instant

case had not retired at the time of the 2011 amendment to MCGO


       40
       Loth v. City of Milwaukee,                           2008     WI     129,     ¶31,   315
Wis. 2d 64, 758 N.W.2d 766.
       41
            Id., ¶43.

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§ 17.14(7),      the     County's     offer       to    reimburse      the       plaintiffs'

post-retirement Medicare Part B premiums could still be revoked

(as the offer of paid retiree health insurance was in Loth).42

       ¶134 The majority opinion overlooks the differences between

Loth and the instant case and misreads Loth.                         Loth turns on the

specific      language      used    by    the     City    employer          to    offer   the

particular       health     benefits      at      issue    in       that     case.        Loth

correctly insists that "the terms of an employer's . . . offer

are important in determining how an employee may accept the

offer and give rise to a binding contract."43

       ¶135 Loth is relevant to the instant case, but not because

it involves health benefits and not because the employee in Loth

was    required        to   fulfill       enumerated           prerequisites          before

receiving those health benefits at retirement.                         Rather, Loth is

relevant because of the contrast between the language used by

the City to offer the benefits at issue in that case and the

language used by the County to offer the benefits at issue in

the instant case.
       ¶136 In     the      instant       case,        Milwaukee       County        offered

employment to the plaintiffs according to the terms set forth in

the   state     session     laws    and     the      Milwaukee       County       ordinances

governing MCERS.            As I explained previously, these laws and

ordinances      provide     that    by    accepting        County      employment,        the

plaintiffs enter into a vested benefit contract with the County.

In    the    instant     case,     unlike       in     Loth,    a    binding       bilateral

       42
            Majority op., ¶¶42-43.
       43
            Loth, 315 Wis. 2d 64, ¶31.

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agreement was created when the plaintiffs were hired by the

County.

      ¶137 I turn to the other two cases in the trilogy: Welter

and   Rehrauer.          These       opinions         of   the     court   of   appeals     have

statewide         precedential        effect          under   Wis.     Stat.     § 752.41(2),

which      provides      that       "[o]fficially          published       opinions    of    the

court      of    appeals      shall       have    statewide         precedential      effect."

These two opinions played no role in the Loth case.                                 They were

not cited or argued and are not referenced in the Loth decision.

      ¶138 In Welter,44 the court of appeals considered a state

session law and provisions of Chapter 36 of the Milwaukee City

Charter relating to the City of Milwaukee Employees' Retirement

System.          The issue presented was whether City police officers

were entitled to the disability benefits provided by the City's

retirement system when they were hired, that is, whether their

right to post-retirement disability benefits vested at hire or

could      be    reduced      by    the    City       prior   to    the    police    officers'

retiring.45
      ¶139 The         language       of    the        governing      state     session     law,

Chapter         441,   Laws    of    1947,       is    substantially        similar    to    the


      44
       For additional discussion of Welter v. City of Milwaukee,
214 Wis. 2d 485, 489, n.2, 13 N.W.2d 459 (Ct. App. 1997), see
Justice Bradley's dissent in Stoker, ___ Wis. 2d ___, ¶¶51-52,
61.
      45
       The precise benefit at issue in Welter was the police
officers' right to the conversion age in effect when they were
hired. The conversion age is the age at which a disabled police
officer's retirement allowance is reduced from the more
favorable Duty Disability Retirement Allowance level to the less
favorable Service Retirement Allowance level.

                                                  27
                                                                 No. 2012AP2490.ssa


language of the state session laws at issue in the instant case.

Chapter 441, Laws of 1947 provides:

     Every such member . . . shall thereby have a benefit
     contract in said retirement system of which he [or
     she] is such member or beneficiary as of the effective
     date of this act . . . . Each member and beneficiary
     having such a [retirement system] benefit contract
     shall have a vested right to such annuities and other
     benefits and they shall not be diminished or impaired
     by subsequent legislation or by other means without
     [the officer's] consent. . . . Every future entrant
     who shall become a member of this retirement system
     after the effective date of this act shall have a
     similar benefit contract and vested right in the
     annuities and all other benefits . . . .46
     ¶140 After considering the text of Chapter 441, Laws of

1947,     the    court    of   appeals    in   Welter     determined     that    the

disability benefits at issue vested when the plaintiff police

officers    became       employees.      Thus,     the   City   could   not     amend

Chapter 36 of the Milwaukee City Charter to deprive the police

officers of those vested benefits.

     ¶141 The Welter court reasoned that the language of the

governing state session law "[is] not ambiguous; [its] meaning

is plain."47       The same can be said of the state session laws

governing the instant case.              The Welter court went on to say:

"Under [Chapter 441], retirement-plan benefits in effect when a

Milwaukee       police   officer   becomes     a   member   of   the    retirement

system are vested as to that officer unless the officer agrees

to a change."48

     46
          See Welter, 214 Wis. 2d at 489 n.2 (emphasis added).
     47
          Id. at 491.
     48
          Id.

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      ¶142 The court of appeals rejected the City's argument that

the employees' right to the disability benefits at issue vested

at some later date, stating that "[t]his argument . . . ignores

the legislative command that the critical date is not that of

the duty-related disability but the date the officer becomes a

member of the retirement system——the date he or she was first

employed by the City as a police officer."49

      ¶143 Rehrauer, involving disability benefits for City of

Milwaukee firefighters,50 presented substantially similar issues

as Welter.          As in Welter, the benefits at issue were post-

retirement disability benefits.              As in Welter, the beneficiaries

were City of Milwaukee employees.                  The same state session law

(Chapter     441,    Laws    of     1947)    and       the   same   chapter     of   the

Milwaukee City Charter (Chapter 36) governed the benefits at

issue in Rehrauer as in Welter.                  The Rehrauer court concluded,

as   did    the   Welter    court,    that       the    City   employees'      benefits

vested at the date of hire.

      ¶144 The terms of employment in the instant case are set
forth in the state session laws and Milwaukee County ordinances

discussed above, just as the terms of employment in Welter and

Rehrauer     were    set    forth    in   the     state      session    law   and    City

Charter provisions at issue in those cases.                     The language of the

state session law at issue in Welter and Rehrauer is in all


      49
           Id. at 494-95.
      50
       The precise benefit at issue in Rehrauer was the
firefighters' right to receive the Duty Disability Retirement
Allowance for life rather than for a limited time.

                                            29
                                                                             No. 2012AP2490.ssa


material respects the same as the language of the state session

laws governing the instant case.

       ¶145 Welter and Rehrauer are directly on point and should

guide this court's decision in the instant case.                                The majority

opinion      is    dismissive     of    Welter      and    Rehrauer,          characterizing

them as disability pension cases and the instant case and Loth

as     health     benefit     cases.          Without      further           explanation     or

citation to any authority, the majority opinion simply asserts

that    pension      benefits     are    a    different      type        of    benefit     than

health insurance, which is "a fluid opportunity for a limited

period of time."51

       ¶146 Contrary to the majority opinion's assertion, health

insurance, like a pension, can be a retirement benefit.                                     The

instant case is not a Loth case; it is a Welter/Rehrauer case.

Unlike      in    Loth,    Milwaukee      County's         offer       to     reimburse     its

employees'        post-retirement        Medicare         Part     B    premiums      in    the

instant case was not a unilateral offer.                          Unlike in Loth, the

benefits at issue in the instant case are part of the County's
retirement system.

       ¶147 Of      course,     the     plaintiffs        could        not    receive      post-

retirement benefits upon commencing their employment with the

County.      They first had to retire, complying with any enumerated

prerequisites.            But not immediately receiving post-retirement

benefits         simply    does   not        mean    the     plaintiffs'           right     to

reimbursement of their post-retirement Medicare Part B premiums



       51
            Majority op., ¶50.

                                              30
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did   not   vest   when   they   commenced   their    employment       with   the

County.

      ¶148 In sum, the majority opinion is unpersuasive in its

attempt at circumventing the language of the governing state

session laws and the Milwaukee County ordinances.               That language

is clear:     The plaintiffs have a vested right to reimbursement

of their post-retirement Medicare Part B premiums.                     The 2011

amendment     to   MCGO   § 17.14(7)    constituted       a   breach    of    the

plaintiffs'    vested     benefit   contracts   and   a   violation      of   the

governing state session laws and Milwaukee County ordinances.

The circuit court properly granted the plaintiffs' motion for

summary judgment, and the court of appeals decision reversing

the circuit court's order should be reversed.

      ¶149 For the reasons set forth, I dissent.

      ¶150 I am authorized to state the Justice ANN WALSH BRADLEY

joins this opinion.




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