                                                         2019 WI 24

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:              2016AP1525
COMPLETE TITLE:        Milwaukee District Council 48,
                                  Plaintiff-Respondent,
                            v.
                       Milwaukee County,
                                  Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                         Reported at 379 Wis. 2d 322, 905 N.W.2d 140
                              PDC No: 2017 WI App 82 - Published

OPINION FILED:         March 19, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 24, 2018

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Stephanie Rothstein

JUSTICES:
   CONCURRED:
   DISSENTED:          ZIEGLER, J., dissents, joined by ROGGENSACK,
                       C.J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there was a brief
filed by Alan M. Levy, Samantha J. Wood, and Lindner & Marsack,
S.C., Milwaukee.        There was an oral argument by Alan M. Levy.


       For the plaintiff-respondent, there was a brief filed (in
the court of appeals) by Mark A. Sweet and Sweet and Associates,
LLC, Milwaukee.         There was an oral argument by Mark A. Sweet.
                                                                             2019 WI 24
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.    2016AP1525
(L.C. No.     2011CV16826)

STATE OF WISCONSIN                                :            IN SUPREME COURT

Milwaukee District Council 48,

              Plaintiff-Respondent,                                      FILED
       v.                                                           MAR 19, 2019
Milwaukee County,                                                      Sheila T. Reiff
                                                                    Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




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


       ¶1     REBECCA GRASSL BRADLEY, J.              Milwaukee County seeks to
deny    what     it    characterizes      as   "unusually       generous"       pension

benefits to certain members of Milwaukee District Council 48 of
the American Federation of State, County and Municipal Employees
(DC-48), citing the County's structural deficit, the escalating
cost   of     the     Employees'     Retirement    System      of    the     County     of
Milwaukee       (ERS),        and   the   County's      intention       to    grant      a
particular benefit to only those represented employees who were
hired before 1994.              Known as the "Rule of 75," this benefit
allows an eligible employee to receive a full pension when his
age    plus    years     of    service    total   75.       After     the    Wisconsin
                                                                         No.   2016AP1525



legislature enacted 2011 Wis. Act 10, which limited collective
bargaining to base wages for municipal employees, the County
resolved     to codify existing Rule                 of     75 eligibility      for    non-
represented employees.           Instead, the County enacted an ordinance
granting Rule of 75 benefits to all employees "not covered by
the terms of a collective bargaining agreement" as long as those
employees were hired before 2006.                      At the time of enactment,
County employees who were represented by DC-48 were no longer
covered by a collective bargaining agreement (CBA), the last of
which expired in 2009.           In order to avoid paying $6.8 million in
benefits the County says it never intended to grant, the County
urges the court to interpret "not covered by the terms of a

collective bargaining agreement" to mean "not represented by a
union."        Because    we    must    apply         the    plain    meaning    of    the
ordinance's text rather than                 rewrite        it to    reflect    what the
County may have intended, we reject the County's request and
affirm the court of appeals.
                                  I.    BACKGROUND

       ¶2     Milwaukee    County      has       a   history    of    negotiating      CBAs
with   its    employees,       including         DC-48    members.       In    1991,   the
County created the Rule of 75, which it amended in 1993.                                The
County's amended ordinance addressed Rule of 75 eligibility for
employees "not covered by the terms" of a CBA.                           See Milwaukee
Cty.   Gen.    Or.   § 201.24(4.1)           (1993).          The    amended    ordinance
reads:




                                             2
                                                                         No.    2016AP1525


     A member[1] who is not covered by the terms of a
     collective bargaining agreement at the time his
     employment is terminated and who retires on and after
     September 1, 1993, shall be eligible for a normal
     pension when the age of the member when added to his
     years of service equals 75[.]
Milwaukee    Cty.    Gen.       Or.   § 201.24(4.1)       (1993).              Under     this
iteration    of    the    ordinance,     the     Rule   of    75    applied         to   each
employee "not covered by the terms of a collective bargaining
agreement"    if    the    employee's      age    added      to    years       of   service

equaled 75, regardless of the hire date.                  Id.
     ¶3      In 1994, the CBA between the County and DC-48 extended
the Rule of 75 benefit to DC-48 members, but only those hired by
the County "prior to January 1, 1994."                    DC-48 members hired on
or after January 1, 1994 were not eligible for the Rule of 75.
     ¶4      In 2005, the County amended Milwaukee County General
Ordinance    § 201.24(4.1)        again,       restricting         its   applicability
within that category of employees not covered by a CBA to only

those employees who were hired prior to January 1, 2006:

     A member who is not covered by the terms of a
     collective bargaining agreement at the time his
     employment is terminated and whose initial membership
     in the retirement system . . . began prior to January
     1, 2006 who retires on and after September 1, 1993,
     shall be eligible for a normal pension when the age of
     the member when added to his years of service equals
     75[.]
Milwaukee Cty. Gen. Or. § 201.24(4.1) (2006) (emphasis added).
In   other   words,       the   County     established        a     cutoff      date      for

     1 "Member" means any member of the County's retirement
system.   All County employees become members of the retirement
system when hired.


                                           3
                                                                             No.    2016AP1525



application of the Rule of 75 to employees not covered by the
terms     of    a    CBA:      employees       within        that    category       would    be
eligible for the Rule of 75 benefit only if they were hired
before January 1, 2006.
      ¶5       In     2008,    with     the    current       CBA     set     to    expire    on
December 31, 2008 the County started negotiating a new CBA with
DC-48.         The    County    and    DC-48       agreed    to     extend    the     CBA    for
another three months.             Although a tentative successor agreement
was   reached, the County Board                    never    approved       it and DC-48's
members never ratified it.                    DC-48's CBA expired on March 31,
2009, and no subsequent CBA was ever consummated.
      ¶6       Effective June 2011, the legislature enacted 2011 Wis.

Act     10,     which       limited     collective          bargaining       for     "general
municipal employees" to base wages.2                       See 2011 Wis. Act 10; see

also Wis. Stat. § 111.70(1)(a) (2011-12).3                          As a result of other
changes        made     by     Act      10,        DC-48's        certification         as       a
representative          of     County     general          employees       was     eventually
revoked in January 2012.
      ¶7       After    the     enactment       of    Act     10,     the     County     again
amended        Milwaukee      County     General      Ordinance        § 201.24(4.1)         to
codify Rule of 75 eligibility for employees covered by the terms
of a CBA on September 29, 2011 and to add the demarcating date


      2It is          undisputed       DC-48       members    are     general       municipal
employees.
      3All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                               4
                                                     No.    2016AP1525



of September 29, 2011 for that category of employees not covered
by a CBA.    The relevant parts of the ordinance provide:

     (a) A member who, on September 29, 2011, is employed
     and is not covered by the terms of a collective
     bargaining agreement, and whose initial membership in
     the retirement system . . . began prior to January 1,
     2006   . . . shall be eligible for a normal pension
     when the age of the member when added to his years of
     service equals seventy-five (75)[.]

     (b) A member who, on September 29, 2011, is employed
     and is covered by the terms of a collective bargaining
     agreement with . . . District Council 48, or with the
     Technicians, Engineers and Architects of Milwaukee
     County, or with the International Association of
     Machinists and Aerospace Workers, and whose initial
     membership date is prior to January 1, 1994, shall be
     eligible for a normal pension when the age of the
     member when added to his years of service equals
     seventy-five (75)[.]
Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a)-(b) (2011)4 (emphasis
added).5    The amendment applied the Rule of 75 to employees "not
covered by the terms of a collective bargaining agreement" on
September 29, 2011 and hired "prior to January 1, 2006."           Id.
(emphasis added).     For an employee who, on September 29, was
"covered by the terms of a collective bargaining agreement" with
DC-48 or one of the other enumerated unions, the Rule of 75


     4 All subsequent references to this ordinance are to the
2011 version unless otherwise indicated.
     5 Paragraphs (2)(c) through (2)(g) in the ordinance address
employees "covered by the terms of a collective bargaining
agreement" with other unions.      The interpretation of these
paragraphs was not raised by the parties and therefore is not
before us.    See Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(c)-
(2)(g)(2011).


                                  5
                                                                 No.   2016AP1525



applied only if the employee was hired "prior to January 1,
1994."      Id.   (emphasis       added).    This    disparate   treatment     of

"covered" and "not covered" employees under the ordinance gives
rise to the dispute before us.               Employees not covered by the
terms of a CBA have a much later cutoff date-of-hire to be
eligible for application of the Rule of 75, thereby expanding
the pool of employees within that category who are eligible for
the Rule of 75 benefit.
      ¶8     After DC-48's decertification, it sought a declaratory
judgment that its members were not covered by the terms of a
CBA, and therefore all members hired prior to January 1, 2006
(as opposed to January 1, 1994) were eligible for the Rule of

75.     Both parties moved for summary judgment.            The County argued
that employees represented by DC-48 on September 29, 2011 were
not entitled to the Rule of 75 unless they were hired prior to
January 1, 1994.           The County asserted these employees were in
fact represented by DC-48 and covered by the terms of a CBA
despite the last CBA expiring in 2009.               DC-48 argued that, as of
the   September      29,   2011    trigger   date,    its   members    were   not
covered by the terms of a CBA, and were therefore entitled to
the Rule of 75 as long as they were employed prior to January 1,
2006.
      ¶9     The circuit court granted DC-48's motion and denied
the County's.6       It reasoned the last CBA between DC-48 and the
County     expired    in   2009;    therefore,      DC-48   members    were   not

      6   The Honorable Stephanie G. Rothstein presiding.

                                        6
                                                                      No.   2016AP1525



covered by the terms of a collective bargaining agreement on
September 29, 2011.           The court of appeals affirmed.                Milwaukee

Dist. Council 48 v. Milwaukee Cty., 2017 WI App 82, ¶1, 379
Wis. 2d 322, 905 N.W.2d 140.              The County filed a petition for
review, which we granted.
                                  II.   DISCUSSION
      ¶10   Although the legislative changes made by Act 10 and
the   County's     multiple       amendments    to    its    ordinance      form      the
backdrop for this dispute, the central issue is quite simple:
under Milwaukee County General Ordinance § 201.24(4.1)(2), were
DC-48 members "covered by the terms of a collective bargaining
agreement" on September 29, 2011?                   If so, only DC-48 members

hired prior to January 1, 1994 would be eligible for the Rule of
75.    This would leave DC-48 members hired between January 1,
1994 and January 1, 2006 ineligible for the benefit.                         However,
if DC-48 members were not covered by the terms of a CBA on
September 29, 2011, then the members hired between January 1,
1994 and January 1, 2006 would be entitled to the Rule of 75
benefit.
                            A.    Standard of Review
      ¶11   This      issue       involves     the     interpretation            of    an
ordinance,    which    is     a   question     of    law    we    review    de     novo.
Schwegel v. Milwaukee Cty., 2015 WI 12, ¶18, 360 Wis. 2d 654,
859 N.W.2d 78.        In interpreting municipal ordinances, we apply
the same principles used in statutory interpretation.                       Stoker v.
Milwaukee     Cty.,    2014       WI    130,   ¶17,    359        Wis. 2d 347,        857
N.W.2d 102.        "[S]tatutory         interpretation           'begins    with      the
                                          7
                                                                                   No.    2016AP1525



language of the statute.'"               State ex rel. Kalal v. Circuit Court

for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(quoted source omitted).                 If the meaning of the language is
plain, our inquiry ordinarily ends.                               Id.      We give statutory
language    "its     common,      ordinary,            and    accepted        meaning,          except
that technical or specially-defined words or phrases are given
their technical or special definitional meaning."                                   Id.     Context
and   structure      are     also       important            to     meaning.             Id.,     ¶46.
"Therefore, statutory language is interpreted in the context in
which it is used; not in isolation but as part of a whole; in
relation     to    the     language         of        surrounding       or    closely-related
statutes;     and    reasonably,             to       avoid       absurd     or     unreasonable

results."     Id.    If this inquiry "yields a plain, clear statutory
meaning, then there is no ambiguity, and the statute is applied
according to this ascertainment of its meaning."                                     Id. (quoted
source omitted).           If the language is unambiguous, then we need
not   "consult      extrinsic          sources          of     interpretation,             such    as
legislative history."            Id.
                                       B.     Analysis
      ¶12    The County argues DC-48 employees were in fact covered
by the terms of the expired CBA on September 29, 2011.                                            This
argument stems from Wis. Stat. § 111.70's duty to collectively
bargain in good faith, which includes the duty to maintain the
contractual status quo during contract negotiations, even if the
previous     CBA    expired.           The    County          acknowledges          that     Act    10
reduced     the    scope    of   collective             bargaining,          but    nevertheless
insists that its duty to maintain the previous wage rates under
                                                  8
                                                                             No.    2016AP1525



the expired CBA did not end until DC-48's decertification in
2012——after      September          29,   2011.           As   a    result,        the   County
contends    DC-48        members     were   "covered           by   the    terms"        of    the
expired CBA.      We disagree.
      ¶13   Setting aside the duty to bargain in good faith, the
County's ordinance, specifically its use of the phrase "covered
by the terms" of a CBA, is plain.                         The ordinance creates two
classes of employees:            (1) those "covered by the terms" of a CBA
with one of the enumerated unions and (2) those "not covered by
the     terms"      of     a    CBA.        See         Milwaukee         Cty.      Gen.       Or.

§ 201.24(4.1)(2)(a)-(b).                  Regardless           of     what       the     County
intended, the plain meaning of "covered by the terms" of a CBA

includes only those employees bound by a valid CBA.                                       It is
difficult to imagine how an employee could be "covered by the
terms" of an expired CBA that no longer binds its parties.                                    If a
CBA   has   expired,        then,     absent       some    other      consideration,           its
terms no longer cover the parties.
      ¶14   The County's invocation of the duty to bargain in good
faith     and    maintain       the       status        quo     does      not      alter       our
interpretation of the plain text of the ordinance.                                 As part of
the duty to "bargain collectively," federal law provides that
employers have an obligation to "meet . . . and confer in good
faith     with   respect        to     wages,      hours,       and    other       terms       and
conditions of employment."                NLRB v. Katz, 369 U.S. 736, 742-43
(1962) (citation and quotation marks omitted).                               In Katz, the
Supreme     Court        held   a    refusal       to     negotiate        over     mandatory
subjects of collective bargaining violated the statutory duty to
                                               9
                                                                           No.    2016AP1525



negotiate        in    good    faith.        Id.      Accordingly,     "an       employer's

unilateral            change      in    conditions          of      employment          under
negotiation . . . is a circumvention of the duty to negotiate
which frustrates the objectives" of the National Labor Relations
Act.       Id.     Given a similar statutory obligation to negotiate in
good faith, see Wis. Stat. § 111.70(1)(a), (3)(a),7 our courts
adopted Katz's reasoning.                See St. Croix Falls Sch. Dist. v.
WERC, 186 Wis. 2d 671, 677-80, 522 N.W.2d 507 (Ct. App. 1994)
(citing Katz and explaining that "[w]hile status quo recognizes
that changes can occur during a contract hiatus if such changes
would otherwise have been permitted under the expired contract,
it does not permit an employer to make unilateral changes in

areas that are otherwise mandatory subjects for the collective
bargaining         table");     Jefferson      Cty.    v.   WERC,    187    Wis. 2d 647,
654,       523   N.W.2d 172      (Ct.   App.       1994)    (explaining          the   "well-
established rule that an employer has a duty to maintain the
status       quo    with      respect   to    wages,    hours    and    conditions         of
employment during contract negotiations, and that an employer's
'unilateral change' in employment conditions or wages breaches



       7
       Paragraph (1)(a) defines "collective bargaining" in part
as "the performance of the mutual obligation of a municipal
employer,   through    its   officers   and  agents,   and   the
representative of its municipal employees in a collective
bargaining unit, to meet and confer at reasonable times, in good
faith, with the intention of reaching an agreement . . . with
respect to wages for general municipal employees."    Wis. Stat.
§ 111.70(1)(a).    Subdivision (3)(a)4 prohibits municipalities
from refusing "to bargain collectively." § 111.70(3)(a)4.


                                              10
                                                                               No.   2016AP1525



the duty to bargain collectively" (quoting Katz, 369 U.S. at

742-46; emphasis added)).
         ¶15       Wisconsin Stat. § 111.70 requires municipal employers
"to meet and confer at reasonable times, in good faith, with the
intention of reaching an agreement . . . with respect to wages
for general municipal employees," and the statute provides "[i]t
is   a       prohibited      practice     for    a   municipal      employer . . . [t]o
refuse        to    bargain    collectively."             Wis.   Stat.    § 111.70(1)(a),
(3)(a)4.           An employer violates this duty to bargain collectively
if it makes any unilateral changes; the employer must maintain
the status quo with respect to those terms subject to mandatory
collective bargaining.                  Since enactment of Act                 10, the only

mandatory subject of collective bargaining for general municipal
employees is base wages.                 Accordingly, the County was obligated
to maintain base wages at the same rate specified in the expired
CBA.8
         ¶16       The obligation to maintain the status quo does not,
however,           support     the     County's      argument.           The     status        quo
obligation arises statutorily, as recognized in our case law; it
does         not    arise     from     the     expired      CBA.         See     Wis.        Stat.
§ 111.70(1)(a),              (3)(a);     St.    Croix       Falls    Sch.        Dist.,       186
Wis. 2d at 677-80.              The parties agree the last CBA expired in
March 2009, and no successor agreement was reached.                                  Because no
contractual          obligations        existed      on    September      29,        2011,    the

         8
       Wisconsin Stat. § 111.70 also limits any increase in base
wages to the increase in the consumer price index.


                                                11
                                                                                  No.      2016AP1525



members of DC-48 were not "covered by the terms" of a CBA on
that date.              The CBA did not give rise to any obligation to
maintain base wages; rather, only § 111.70 did.                                       The dissent
sidesteps this distinction and confuses the County's statutory

obligation             to     maintain     the           status       quo      during        contract
negotiations,               with     contractual          obligations          that     no        longer
existed after the CBA expired, insisting that these statutory
obligations            mean     that     "terms          of    DC-48's       expired       CBA     with
Milwaukee         County        remained       in    effect."           Dissent,        ¶49.        The
dissent         neglects        to     explain      how        a     statute    is     capable        of
resuscitating a defunct contract.                             Expiration of the CBA means
none       of    its    terms        survive     and      even       importing       the     County's

statutory status quo obligation into the Rule of 75 ordinance,
as the dissent does, would not resurrect them.9
       ¶17       The        dissent     complains             that     our     reading       of      the
ordinance results in meaningless surplusage.                                 Dissent, ¶¶31, 49.
This concern is misplaced.                     The canon against surplusage guides
us     to       read        legislative    language            "where        possible        to     give


       9
       Peculiarly, the dissent accuses the court of failing to
consider "how collective bargaining works," referring to the
County's status quo obligations.      Dissent, ¶49.    We do not
overlook "how collective bargaining works" but with some detail
reject the dissent's proffered construction of the ordinance
because it improperly reaches beyond the ordinance's text, and
necessarily injects an assessment of the efficacy of the
County's legislative choices, which we decline to do.         By
relying solely on collective bargaining law rather than the
actual text of the ordinance, the dissent's construction
improperly "travel[s] . . . beyond the borders of the statute."
United States v. Great N. Ry., 287 U.S. 144, 154 (1932).


                                                    12
                                                                   No.    2016AP1525



reasonable effect to every word, in order to avoid surplusage."
Kalal, 271 Wis. 2d 633, ¶46 (emphasis added); see also Antonin

Scalia & Bryan A. Garner, Reading Law:                  The Interpretation of
Legal     Texts    176   (2012)    ("Because    legal       drafters     should    not
include words that have no effect, courts avoid a reading that
renders     some     words   altogether        redundant.").10           Under     our
interpretation,       both   paragraphs      (2)(a)    and    (2)(b)     operate    on
different     categories      of     employees        and     perform     different
functions.        See Milwaukee Cty. Gen. Or. § 201.24(4.1)(2)(a)-(b).
Paragraph (2)(a) provides an eligibility date of January 1, 2006

     10Even   if   a   plain   meaning   interpretation  creates
surplusage, sometimes legislatures do create surplusage and
redundancies of language, and therefore the canon against
surplusage is not absolute.      See Antonin Scalia & Bryan A.
Garner, Reading Law:   The Interpretation of Legal Texts 176-77
(2012); State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 ("Statutory language
is read where possible to give reasonable effect to every word,
in order to avoid surplusage." (emphasis added)); State v.
Mason, 2018 WI App 57, ¶26, 384 Wis. 2d 111, 918 N.W.2d 78
(explaining that "[t]he directive that we endeavor to give
meaning to all parts of statutes so as to avoid surplusage is
not a directive that we give different terms different meanings,
regardless where that leads" and "the 'preference for avoiding
surplusage constructions is not absolute'" (quoted source
omitted; emphasis omitted)); see also Connecticut Nat'l Bank v.
Germain, 503 U.S. 249, 253-54 (1992) (explaining that canons of
construction, like the canon against surplusage, "are no more
than rules of thumb that help courts determine the meaning of
legislation, and in interpreting a statute a court should always
turn first to one, cardinal canon before all others," the canon
"that courts must presume that a legislature says in a statute
what it means and means in a statute what it says there"). The
dissent's supposition that the use of "covered by the terms of"
means something different than "covered by a" CBA in fact leads
nowhere, as the dissent fails to identify any textual difference
in meaning between the two phrases.


                                        13
                                                                           No.   2016AP1525



for employees not covered by the terms of a CBA.                          Id.     Paragraph

(2)(b), on the other hand, provides an earlier eligibility date
of January 1, 1994 for employees covered by the terms of a CBA
with DC-48 or other specified unions.                       Id.     Neither paragraph is
left without a textual function and every word is given meaning.
       ¶18    Even if no employees were in fact covered by the terms
of a CBA with DC-48 (due to the expiration of the previous CBA),
this     extrinsic          fact    is     immaterial          to     ascertaining         the
ordinance's         plain    meaning.           The     concept      of   surplusage       is
intrinsic to         the text of          the    ordinance;         attempting to        avoid
surplusage is a tool employed as part of our textual analysis.
While we endeavor to give effect to every word, we do not reach

beyond    the       statutory      text   itself       to    consider     the    practical,
political, or policy implications of the law, nor do we weigh
the extrinsic ramifications of our construction, such as the
"cost to taxpayers" noted by the dissent.                             Dissent, ¶41 n.6.
Instead, we confine our analysis of unambiguous laws to their
text.        See Kalal, 271 Wis. 2d 633, ¶¶46, 50 (explaining that
"Wisconsin courts ordinarily do not consult extrinsic sources of
statutory interpretation unless the language of the statute is
ambiguous," and extrinsic                 sources      are    "interpretive       resources
outside the statutory text").                   It would be improper to consider
extrinsic      evidence       of   whether       the    ordinance      accomplished        the
County's goals.             It does not matter if the County created a
category       no    employees       filled          when    the    County      passed     the
ordinance; each paragraph of Milwaukee County General Ordinance
§ 201.24(4.1) bears a textual function.                           Accordingly, there is
                                                14
                                                                                      No.       2016AP1525



no surplusage problem.                Any apprehension about the existence of
a category into which no employee may fit necessarily concerns
the wisdom of the County's choice of language.                                          Such second-
guessing of the prudence of the County's ordinance would reach
beyond      the        proper     judicial          role,           which        is        limited        to
interpreting and applying the clear text.
      ¶19     The canon against surplusage usually applies only if
there are two ways to read a text.                             See Scalia, supra ¶17, at

176     (explaining        that       the      canon          typically          applies          when       a
statutory          provision         is        susceptible                to      two           different
interpretations, one of which will result in surplusage while
the other does not); see also Bourne Valley Court Tr. v. Wells

Fargo Bank, NA, 832 F.3d 1154, 1164 (9th Cir. 2016) (Wallace,
J., dissenting) (explaining that "courts should not apply the
canon    without         first    deciding          that       there        are       at     least       two
potential      readings         of    the      statute         (one        that       renders          parts
superfluous and one that does not)").                           The meaning of the phrase
"covered      by    the    terms"        of    a    CBA       is    plain,        and       it     is    not
susceptible         to     the       County's           (or        the     dissent's)             desired
construction.
      ¶20     Disregarding           the      actual         text    of    the     ordinance,            the
County proffers an alternative definition of "covered by the
terms" of a CBA.           It claims that "covered by the terms" of a CBA
was   merely       a    "commonly        understood            method       of     categorization"
meant    to    distinguish           union        employees          (including             those       with
expired     CBAs)       from     those      who    had        never       worked      under        a    CBA.
Citing    Local        321,     Int'l      Ass'n        of    Fire       Fighters          v.    City     of
                                                   15
                                                                                   No.    2016AP1525



Racine, 2013 WI App 149, 352 Wis. 2d 163, 841 N.W.2d 830, the

County argues an employee is "covered by the terms" of a CBA
"whenever a CBA has been approved and the employee falls within
the category of to whom the CBA pertains."                             In other words, the
County    wants       "covered         by    the    terms"      of     a    CBA     to    mean      any
employee represented by a union who was at one point subject to
a CBA.
      ¶21     In support of this construction, the County points to
the whereas clauses of the 2011 amendments to Milwaukee County
General       Ordinance       § 201.24(4.1)(2).                  One       of     these       clauses
expressed       the        County      Board's          "wish[]"     to         "codify       in     the
ordinances        pension           provisions           previously             found     in        such

collective bargaining agreements units                           for"       general municipal
employees       "related          to     the    pension         multiplier,             the    normal
retirement age and the Rule of 75[.]"                                Based on the County
Board's     "wishes," the County                   insists      that       it    could    not       have
meant    to    expand        eligibility           for    the    Rule       of     75     to       DC-48
employees hired after January 1, 1994 because the expired CBA
did not do so.             The language the County enacted, however, says
otherwise, and it is the enacted language the court must apply.
"The words of a governing text are of paramount concern, and
what they convey, in their context, is what the text means."
Scalia, supra ¶17, at 56; see also Kalal, 271 Wis. 2d 633, ¶¶44-
46    (explaining          that     we      begin       statutory      analysis          "with       the
language of the statute" read "in the context in which it is
used; not in isolation but as part of a whole; in relation to
the   language        of    surrounding        or       closely-related           statutes;          and
                                                   16
                                                                                     No.    2016AP1525



reasonably, to avoid absurd or unreasonable results," and if
this    analysis       yields       a    plain     meaning,          we    end       our    inquiry).
Although whereas clauses and statutory preambles may be useful
in     resolving      ambiguities,             such     language          "cannot          enlarge    [a
statute's]          scope    and        operation."             See       Smith       v.     City    of

Brookfield,         272     Wis. 1,      3-5,     74        N.W.2d 770      (1956);          see    also
Scalia,      supra        ¶17,     at    218    (explaining              that    while       language
appearing       in     a     statutory          prologue           may    be     "considered          in
determining          which         of     various            permissible             meanings        the
dispositive         text     bears,"       prefatory          statements         of        legislative
intention "cannot give words and phrases of the dispositive text
itself a meaning that they cannot bear").                                 "It is the law that

governs, not the intent of the lawgiver," and "[m]en may intend
what they will; but it is only the laws that they enact which
bind us."       Kalal, 271 Wis 2d 633, ¶52 (quoting Antonin Scalia, A
Matter of Interpretation:                  Federal Courts and the Law 17 (1997)
(emphasis omitted)).               "[I]t is the text's meaning, and not the
content of anyone's expectations or intentions, that binds us as
law."     Lawrence H. Tribe, Comment, in Antonin Scalia, A Matter
of Interpretation: Federal Courts and the Law 66 (1997); see
also Kalal, 271 Wis. 2d 633, ¶¶44-46, 52.
       ¶22     The    dissent       similarly          strays       from       the    text     of    the
ordinance while assigning unwarranted import to the phrase "the
terms of" in isolation from the full phrase:                                    "covered by the
terms     of    a    collective          bargaining           agreement."              The     dissent
admonishes          that     our        reading        of     Milwaukee          County       General
Ordinance      § 201.24(4.1)(2)             renders          the    phrase       "'by       the    terms
                                                  17
                                                                     No.    2016AP1525



of' . . . functionally         useless        within     subsection        (4.1)(2)."
Dissent, ¶38.       The dissent accuses us of conflating the phrase
"covered by the terms of a collective bargaining agreement" with
the    phrase     "covered   by    a    collective       bargaining        agreement,"
insisting there must be a difference between the two.                         Dissent,
¶42.
       ¶23   Specifically,        the   dissent        cites     Milwaukee      County
General      Ordinance   § 201.24(3.11)(1)(a),             (1)(e),     and      (1)(f)
(2018) as other instances of the County's use of both "covered
by the terms of" a CBA and "covered by" a CBA.                      Dissent, ¶¶45-
47.    The dissent insists "[t]he Board of Supervisors' choice to
use differing language in neighboring sections of the County

Employee Retirement System ordinances should be respected," and
the use of these phrases in paragraph (1)(a) in particular "is a
distinction with a difference."                Dissent, ¶45.        Much like its
analysis     of    § 201.24(4.1)(2),          however,     the     dissent      offers
nothing more than a bare conclusion that the phrases must mean

something different.         Dissent, ¶45.       The dissent cites two other
ordinance sections using the phrase "covered by a collective
bargaining agreement," but its analysis of these provisions is
similarly conclusory.         Dissent, ¶48.       The dissent's inability to
identify any operative difference between being "covered by" a
CBA and being "covered by the terms" of a CBA lends credence to
the likelihood that the use or omission of "the terms of" is
nothing more than a "stylistic mannerism."                     See Scalia, supra
¶17, at 177.


                                         18
                                                                              No.    2016AP1525



       ¶24     By insisting that "covered by the terms" of a CBA is
different than "covered by" a CBA without identifying a textual
basis for the distinction, the dissent disregards the reality
that "[s]ometimes drafters do repeat themselves and do include

words that add nothing of substance[.]"                       Scalia, supra ¶17, at
176;   see     also      Arlington       Cent.    Sch.   Dist.          Bd.     of    Educ.    v.
Murphy, 548 U.S. 291, 299 n.1 (2006) ("While it is generally
presumed that statutes do not contain surplusage, instances of
surplusage are not unknown."); United States v. Bronstein, 849
F.3d 1101, 1110 (D.C. Cir. 2017) (declining to apply the canon
against surplusage, and observing that at times "drafters do
repeat    themselves       and    do    include     words      that       add       nothing    of

substance"      (quoting     Scalia,      supra     ¶17,       at       176);       Kalal,    271
Wis. 2d 633, ¶46 ("Statutory language is read where possible to
give     reasonable      effect    to     every     word,          in    order       to     avoid
surplusage." (emphasis added)); State v. Mason, 2018 WI App 57,
¶26,     384    Wis. 2d 111,      918     N.W.2d 78      ("[S]ometimes               the     most
reasonable       reading    of     a     statute,       one    that        gives       it     the
legislatively intended effect, is one that renders some language
in the statute surplusage.").
       ¶25     "Though     one         might     wish         it        were         otherwise,
drafters . . . often (out of a misplaced pursuit of stylistic
elegance)      use    different        words   to   denote         the    same        concept."
Scalia, supra ¶17, at 170; see also Freeman v. Quicken Loans,
Inc., 566 U.S. 624, 635 (2012) (interpreting "portion," "split,"
and "percentage" to "mean the same thing" explaining this is "a
perhaps regrettable but not uncommon sort of lawyerly iteration"
                                           19
                                                                      No.    2016AP1525



to include redundant terms, and "the canon against surplusage
merely     favors     that    interpretation         which    avoids        surplusage"
(emphasis omitted)); Doe v. Boland, 698 F.3d 877, 881-82 (6th

Cir. 2012) (explaining "the presumption against surplusage does
not apply to doublets——two ways of saying the same thing that
reinforce its meaning" and noting "[t]he U.S. Code is replete
with meaning-reinforcing redundancies").11                   We should be wary,
however,    of   "creat[ing]        unforeseen       meanings   or   legal      effects
from"     what   is    nothing      more     than    a    "stylistic        mannerism."
Scalia, supra ¶17, at 177; see also Connecticut Nat'l Bank v.
Germain, 503 U.S. 249, 253-54 (1992) (explaining that the canon
against    surplusage        must   yield    to     the   "cardinal"    canon     "that

courts must presume that a legislature says in a statute what it
means     and    means       in     a   statute       what    it     says      there").


    11 Surely the dissent, in endeavoring to find outcome-
determinative meaning in each and every word, would not ascribe
interpretive significance to the "doublets and triplets"
prevalent in legal writings of every kind, such as "[e]xecute
and perform——what satisfies one but not the other?         Rest,
residue and remainder——could a judge interpret these as
referring to three distinct things?     Peace and quiet——when is
peace not quiet?" See Scalia, supra ¶17, n.10, at 177. As yet
another example of how slight variations in the expression of a
term often bear no substantive meaning, "[b]efore the 2007
revisions, the Federal Rules of Civil Procedure contained
varying requirements for cause, for good cause, for cause shown,
and for good cause shown. There was no reason to believe that,
after removal of the attendant modifiers, the cause did not have
to be good or did not have to be shown."      Scalia, supra ¶17,
n.10, at 177.    So too here; there is no reason to assign a
different meaning to "covered by the terms of a collective
bargaining agreement" than "covered by a collective bargaining
agreement" and the dissent identifies no textual basis for doing
so, despite its repeated invocations of plain meaning.

                                            20
                                                                                No.    2016AP1525



Additionally,       the      dissent    offers          no     elaboration        on    how    our
interpretation leaves "by the terms" functionally useless.                                     Our
interpretation gives the phrase "covered by the terms" of a CBA

its   plain     meaning;      it    means     that       the       terms   of    the    CBA——not
statutory obligations——must cover the employees at issue.
       ¶26     Although       the    dissent            would       adopt       it,      we    are
unpersuaded by the County's largely unsupported assertion that
there existed some "commonly understood" definition of "covered
by the terms" of a CBA that included employees who were not in
fact covered by the terms of a CBA.                      An employee is not "covered
by the terms" of a CBA merely by virtue of being represented by
a union.       If the County had intended such a categorization, it

could have easily written the ordinance to accomplish this, as
the court of appeals noted.              See Milwaukee Dist. Council 48, 379
Wis. 2d 322, ¶23 ("If the County intended by the ordinance to
exclude general county employees whose CBAs expired before the
effective date, the County could have said so.").                                     The County
Board's      generally     expressed        "wishes"          to    codify      existing       CBAs
does not change our analysis.                  Although whereas clauses may be
useful    in    ascertaining        meaning        in    the       face    of   an     ambiguous
ordinance,      they    are    not     part    of       the     ordinance        and    may    not
override the unambiguous language of the ordinance itself.                                     See
City of Brookfield, 272 Wis. at 3-5 (addressing a whereas clause
in a zoning ordinance and explaining "the preamble of a statute
cannot enlarge its scope and operation, but it may be considered
in    determining      the    intent    of     the       act."       (citation        omitted));
State     ex    rel.      Columbia      Corp.       v.       Town      Bd.      of     Pac.,    92
                                              21
                                                                               No.    2016AP1525



Wis. 2d 767,      779-780     &     n.10,    286     N.W.2d 130           (Ct.       App.   1979)
(explaining       that   a    statutory       preamble          is   not       part     of       the
enactment        and     is       "merely         'instructive            of         legislative
intent'"(quoted source omitted)); see also District of Columbia

v. Heller, 554 U.S. 570, 577-78 & n.3 (2008) (explaining that
"in America 'the settled principle of law is that the preamble
cannot control the enacting part of the statute in cases where
the enacting part is expressed in clear, unambiguous terms,'"
but prefatory language may help to clarify an ambiguity (quoted
source omitted)).
      ¶27   In this case, we are not called upon to construe an
ambiguous ordinance; the ordinance is quite clear so we need not

consult extrinsic sources.                "We assume that the legislature's
intent    is expressed        in    the     statutory language."                     Kalal,      271
Wis. 2d 633,      ¶44.        Any    indicia        of    the     County's           subjective
purpose in enacting the ordinance beyond what is expressed in
the   text of      the ordinance itself are                 irrelevant because                   the
meaning of the enacted text is plain.                    See id., ¶46.
      ¶28   The    County     takes       Local     321     out      of    context          in   an
attempt     to     support         its      proffered       "commonly                understood"
definition of "covered by the terms" of a CBA; the case does not
support the County's construction.                       In Local 321, the City of
Racine and the union signed two successive CBAs, and the second
CBA——although signed and legally binding——was not yet in effect.
Local 321, 352 Wis. 2d 163, ¶¶1, 3.                      The City argued the second
CBA   did   not     "cover"       certain     employees          because         it    was       not
currently in effect.           Id., ¶14.           The court of appeals rejected
                                             22
                                                                    No.    2016AP1525



this   argument      because   under    "ordinary       principles    of    contract
law . . . the fact that a contract contemplates that performance
will not begin until some date in the future does not change the
fact that the contract exists and is an enforceable, legally
protected relationship."          Id.     The court of appeals correctly

recognized that the plain meaning of "covered by" a CBA meant
"an employee is 'covered by' a CBA whenever a CBA has been
approved and the employee falls within the category of to whom
the CBA pertains."        Id., ¶12.       The County takes this statement
out of context to mean that an expired CBA still covers the
member who originally agreed to it.                 In doing so, the County
disregards     the    distinction      between     the    legally    binding        CBA

governing     the     affected    employees        in    Local   321        and    the
inoperative CBA in this case.           Logically, DC-48 employees cannot
be covered by the terms of the expired CBA because it is a legal
nullity.      Accepting    the   County's     argument      would    lead     to    the
absurdity of sustaining an expired contract in perpetuity.
       ¶29   Finally, other      portions     of Milwaukee       County      General
Ordinance     § 201.24(4.1)      rebut       the    County's     position          that
"covered by the terms" of a CBA really means "represented by a
union."      The ordinance uses each of these phrases to identify
different groups of employees.            Compare Milwaukee Cty. Gen. Or.
§ 201.24(4.1)(2)(a)-(b) (using "covered by the terms" of a CBA)
with § 201.24(4.1)(2)(f)-(g) (applying to employees "covered by
the terms" of a CBA but "not represented by" particular unions




                                        23
                                                                            No.    2016AP1525



(emphasis added)).12              Logically, the County could not have meant
"represented by a union" when it wrote "covered by the terms" of
a    CBA    because    in    paragraph      (2)(f)        it    created    a     category     of
members who were both "covered by the terms of a collective

bargaining          agreement       with     the       Milwaukee         Deputy      Sheriffs
Association"         and    "not     represented          by     the     Milwaukee       Deputy
Sheriffs         Association,"      and    in    paragraph        (2)(g)    it    created       a
category of members who were both "covered by the terms of a
collective         bargaining       agreement        with       the    Milwaukee         County
Firefighters Association (IAFF Local 172)" and "not represented
by    the    Milwaukee      County    Firefighters             Association       (IAFF    Local
172)."       "When the legislature uses different terms in a statute—

—particularly in the same section——we presume it intended the
terms to have distinct meanings."                    Johnson v. City of Edgerton,
207 Wis. 2d 343, 351, 558 N.W.2d 653 (Ct. App. 1996); see also
Armes       v.    Kenosha   Cty.,     81    Wis. 2d 309,          318,     260    N.W.2d 515
(1977)           ("Where     the       legislature              uses      two      different
phrases, . . . in           two    paragraphs        in   the     same    section,       it   is
presumed         to have intended          the   two      phrases      to have     different


       12
       We are aware that the County added paragraphs (f) and (g)
of Milwaukee County General Ordinance § 201.24(4.1)(2) after
adopting the revisions at issue in this case.      Regardless of
when the ordinance paragraphs were enacted, the use of both
"covered by the terms of a collective bargaining agreement" and
"represented by" a union indicates the phrases are not
synonymous and cannot mean the same thing.     We interpret the
language of the ordinance "not in isolation but as part of a
whole" and "in relation to the language of surrounding or
closely-related statutes." Kalal, 271 Wis. 2d 633, ¶46.


                                                24
                                                                            No.   2016AP1525



meanings.").         The County's argument works only if we understand
"covered by the terms" of a CBA to identify the same group of
people as those "represented by" a union.                             The use of both
phrases      in     different    portions         of    the    same     section        of    an
ordinance belies this construction.                     The County demonstrated it
knows the difference between the two phrases by using them in
different ways.            Indeed, the County created a class of members
who were both covered by the terms of a CBA with a particular
union but not represented by that union.

                                 III.       CONCLUSION
       ¶30    The    meaning     of    Milwaukee        County       General      Ordinance
§ 201.24(4.1) is plain.              Employees not covered by the terms of a

CBA are entitled to the benefit of the Rule of 75 if they were
hired prior to January 1, 2006.                        On September 29, 2011, the
operative date in the County's amended ordinance, DC-48 members
were not covered by the terms of a CBA because the last CBA had
expired.          Although     the    County      may    have    been       obligated        to
maintain      base    wages     at    the   same       rates    expressed         under     the
expired      CBA,    the    obligation      derives       from       statutes,     not      any
contract.         DC-48 members were not "covered by the terms" of the
expired CBA, which lacks any legal force or validity.                                  If the
County intended a different allocation of benefits, it should
have   chosen different language.                  But    with respect            to   County
employees hired between 1994 and 2006, the plain text enacted by
the County does not confine the application of the Rule of 75 to
unrepresented        employees        and   the    court       may    not    rewrite        the
ordinance to give effect to the County's purported intentions.
                                             25
                                                         No.   2016AP1525



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




                                26
                                                                         No.    2016AP1525.akz


       ¶31    ANNETTE       KINGSLAND        ZIEGLER,       J.      (dissenting).             I
dissent      from     the    majority        opinion       because       it    misconstrues
Milwaukee County General Ordinances ("MCGO") §§ 201.24(4.1)(2)
and 201.24(3.11)(1).             It errantly dispenses with the choices set
out    in    the    ordinances       that    use     two    different          phrases:     (1)
"covered by the terms of a collective bargaining agreement" and

(2) "covered by a collective bargaining agreement."                             The opinion
pays no heed to whether the phrases chosen by the Milwaukee
County Board of Supervisors have distinct meanings.                              Rather, it

conflates the terms despite their use in the context of this and
also nearby, closely-related ordinance sections.                               The majority
completely disregards this language and yet claims to engage in
a plain meaning analysis that serves to render "by the terms of"
mere surplusage.            Instead of evaluating whether that language
can    be    construed      to     have    meaning,     the      majority       injects     its
conclusion that the Board of Supervisors did not mean what it
said,        relying          on      the         notion         "that          at     times

drafters . . . include             words     that    add    nothing       of    substance."
Majority      op.,    ¶24     (internal       quotations         omitted).           Such    an
interpretation         stands        in     opposition        to     basic        rules      of
construction, which traditionally strive to give effect to each
word    of   an     ordinance      when     possible.         Due   to    the     majority's
significant         departure        from     a     plain     meaning          analysis     of
§ 201.24(4.1)(2), I respectfully dissent.
                                              I
       ¶32    The      most        glaring         error       in     the         majority's
interpretation of MCGO § 201.24(4.1)(2) lies in its failure to

                                              1
                                                                                  No.     2016AP1525.akz


evaluate    whether       the        language         "covered          by    the       terms      of    a
collective       bargaining           agreement,"           as      used           throughout         the
subsection,       could    indeed          have       meaning      when           compared      with     a
previous section of the ordinance that does not use that phrase.
The majority proclaims its intent to adhere to the plain text of
the    ordinance,         and        then        ignores          traditional               tools       of
construction       to     conclude              that       "[b]ecause              no     contractual
obligations       existed       on    September            29,    2011,"          pursuant       to      an
active collective bargaining agreement ("CBA"), "the members of

DC-48 were not 'covered by the terms' of a CBA on that date."
Majority    op.,     ¶16.            As    will       be    explained             below,      such      an
interpretation belies the plain meaning of the ordinance.
                                                  A
      ¶33   It is well-established that the rules regarding the
interpretation of state statutes apply equally when interpreting
local ordinances.         State v. Ozaukee Cty. Bd. of Adjustment, 152

Wis. 2d 552,       559,     449           N.W.2d 47         (Ct.        App.        1989)      (citing

Hambleton    v.    Friedmann,             117    Wis. 2d 460,           462,        344     N.W.2d 212
(Ct. App. 1984)).           I start then by addressing longstanding and
fundamental principles of statutory interpretation that should
guide our analysis.
      ¶34   In construing statutes, "[s]tatutory 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."                              State ex rel. Kalal
v.    Circuit     Court     for           Dane    Cty.,          2004        WI     58,     ¶45,        271
Wis. 2d 633, 681 N.W.2d 110.                      However, "statutory language is

                                                  2
                                                                             No.   2016AP1525.akz


interpreted in the context in which it is used; not in isolation
but    as    part      of   a    whole;     in       relation     to        the    language    of
surrounding         or    closely-related            statutes;        and     reasonably,      to
avoid absurd or unreasonable results."                           Id., ¶46.            "If this

process of analysis yields a plain, clear statutory meaning,
then there is no ambiguity, and the statute is applied according
to this ascertainment of its meaning."                          Id.     "In construing or
interpreting a statute the court is not at liberty to disregard
the plain, clear words of the statute."                       Id.

       ¶35    Additionally and importantly, "[s]tatutory language is
read where possible to give reasonable effect to every word, in
order to avoid surplusage."                 Id.        The majority correctly states
that    this rule is not             absolute,         as "[s]ometimes             drafters    do
repeat      themselves       and    do    include       words    that        add    nothing     of
substance[.]"            Majority op., ¶24 (citing Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 176
(2012)).          However, this is the exception, not the rule, when

interpreting statutes.               Indeed, we have repeatedly stated that
we should strive to not interpret statutes in a manner that
renders      any    word    or     phrase    unnecessarily            superfluous.            See,
e.g.,    Metropolitan           Assocs.    v. City          of Milwaukee,          2018 WI     4,
¶¶41-42,      379      Wis. 2d 141,        905       N.W.2d 784       (interpreting         Wis.
Stat. § 70.32(1) so as to give effect to the word "practicably,"
leading      to    a     conclusion       that       mass   appraisal         techniques      are
authorized by statute); Madison Teachers, Inc. v. Walker, 2014
WI 99, ¶151, 358 Wis. 2d 1, 851 N.W.2d 337 (construing Milwaukee
Charter       Ordinance          § 36–13–2–d           as     distinguishing            between

                                                 3
                                                                               No.    2016AP1525.akz


contributions made by the City of Milwaukee and contractually
protected      benefits          of    plan     members        such    that     "contributions"
could        not     be     considered            a       "benefit"       because        such     an
interpretation gave effect to each word of the ordinance and
avoided      surplusage);             Bostco     LLC      v.   Milwaukee       Metro.     Sewerage

Dist., 2013 WI 78, ¶55, 350 Wis. 2d 554, 835 N.W.2d 160 (reading
Wis. Stat. § 893.80(3) to give effect to the phrase "the amount
recoverable by any person" in the interest of avoiding rendering
part    of    the    statute surplusage, and thus                        concluding       that    an

order    for       abatement          is   not    covered         by     § 893.80(3)       because
abatement          does    not    entitle         "any         person"    to     "recover"       any
amount); see also Scalia & Garner, supra ¶35, at 176 ("Because

legal drafters should not include words that have no effect,
courts       avoid    a    reading         that       renders      some       words     altogether
redundant.").
       ¶36     Moreover, when considering statutes, "[i]t is presumed
that the legislature acted with full knowledge of the existing

law, both the statute[s] and the court decision[s] interpreting
it."         Kindy    v.    Hayes,         44    Wis. 2d 301,          314,     171     N.W.2d 324
(1969);       see     also        Blazekovic              v.   City      of    Milwaukee,        225
Wis. 2d 837, 845, 593 N.W.2d 809 (Ct. App. 1999) (stating that
an analysis of statutes "begins with the presumption that the
legislature knew the case law in existence" when it enacted the
statutes); Carol J.R. v. Cty. of Milwaukee, 196 Wis. 2d 882,
888, 540 N.W.2d 233 (Ct. App. 1995).                               As we interpret state
statutes and local ordinances the same way, there is no reason
to disrupt that presumption here.

                                                      4
                                                                          No.     2016AP1525.akz


                                                 B
       ¶37    My analysis is driven by the plain                           meaning       of   the
language     in     the    ordinances       at       issue.       Specifically,         certain
parts of the ordinances use the phrase "covered by the terms of
a    collective      bargaining        agreement"          and    other     parts       use   the
phrase "covered by a collective bargaining agreement."                                  Instead
of    ascertaining        why     this    choice       might      have     been     made,     the
majority quickly surmises that the language has no meaning and
was gratuitously added.

       ¶38    The majority starts its analysis at the finish line,
reading      MCGO    § 201.24(4.1)(2)            in    a   manner     that      ascribes       no
meaning to the phrase "by the terms of," thus rendering the
phrase     functionally          useless    within         subsection       (4.1)(2).          It
concludes that, "[r]egardless of what the County intended, the
plain meaning of 'covered by the terms' of a CBA includes only
those employees bound by a valid CBA," stating that it cannot
"imagine how an employee could be 'covered by the terms' of an

expired CBA that no longer binds its parties."                               Majority op.,
¶13.       But,     as    will    be     demonstrated,         such   an    interpretation
contradicts the plain text of the ordinance.1                             By utilizing the
phrase     "covered       by     the   terms     of,"      this    section        has   broader
reach, in that it results in fewer people being able to claim

       1
       I note that Milwaukee County also raises significant
concerns regarding what it phrases as the duty to "maintain the
status quo about mandatory subjects of bargaining" and its
effect on the Milwaukee County General Ordinances.   As I focus
on the plain meaning of MCGO § 201.24(4.1)(2) based upon the
ordinance's text, I will not further address Milwaukee County's
argument regarding the status quo obligation.


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Rule of 75 benefits because even though they are not "covered by
a collective bargaining agreement" then in existence, they may
still    be    "covered    by   the    terms       of    a    collective     bargaining
agreement."        If the drafters of the ordinance had intended to
include all, rather than exclude some, a much simpler provision
could have been drafted.
     ¶39      The at-issue ordinance determines eligibility for the
"Rule of 75," which provides eligible Milwaukee County employees
a full pension plan when an employee's age and years of service

equals        or    exceeds     75.             Milwaukee         Cty.      Gen.        Or.
§ 201.24(4.1)(2)(a)        creates      Rule       of   75    eligibility        for    any
member   who,      on   September     29,    2011,      "is   employed     and    is     not
covered by the terms of a collective bargaining agreement, and
whose initial membership in the retirement system under section
201.24 began prior to January 1, 2006, and who retires on and
after    September 1,      1993."2          MCGO   § 201.24(4.1)(2)(a).                Thus,


     2 Milwaukee Cty. Gen. Or. § 201.24(4.1)(2) creates seven
groups of members who may be eligible for Rule of 75 pension
benefits, but only subsections (4.1)(2)(a) and (4.1)(2)(b) are
at issue here. The majority criticizes my purported failure to
address or explain the effect of MCGO § 201.24(4.1)(2)(f)–(g).
Subsections (4.1)(2)(f) and (4.1)(2)(g) did not appear in the
Milwaukee County General Ordinances until July of 2016——
approximately 20 months after this action was commenced.
However, subsections (4.1)(2)(f) and (4.1)(2)(g) merely state
that if an employee is covered by the terms of a CBA on
September 29, 2011, and is no longer represented by either of
the two enumerated unions at the date of retirement, the
employee is eligible for a Rule of 75 pension.              See
§ 201.24(4.1)(2)(f)–(g).   The subsections seem to ensure that
employees who fall within either subsection will have a pension
despite no longer being represented by either of the two
enumerated unions when they retire.


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§ 201.24(4.1)(2)(a) creates        eligibility    for   any   employee    who:
(1) initially became a member of the retirement system before
January 1, 2006; (2) retires on or after September 1, 1993; and
(3) on September 29, 2011, was employed and was not covered by

the terms of a CBA.3
     ¶40    Subsection   (4.1)(2)(b)     creates    eligibility     for    any
"member who, on September 29, 2011, is employed and is covered
by the terms of a collective bargaining agreement" with a few
unions,    including   Municipal    Employe[e]s    District     Council    48,

"and whose initial membership date is prior to January 1, 1994."
MCGO § 201.24(4.1)(2)(b).       Thus, under subsection (4.1)(2)(b),
Rule of 75 benefits are afforded to any member of DC-48 or other
enumerated union who: (1) initially became a member prior to
January 1, 1994; and (2) on September 29, 2011, was employed and
was covered by the terms of a CBA.4

     ¶41    The   majority   construes    subsections     (4.1)(2)(a)      and
(4.1)(2)(b) in a vacuum to surmise that it creates two groups of

members: (1) those covered by an existing CBA with one of the




     3 The remainder of subsection (4.1)(2)(a) limits eligibility
for certain employees, such as "any member eligible under
section 4.5," which addresses "deferred vested retirement," for
certain    sheriffs    or    correctional   officers.        MCGO
§ 201.24(4.1)(2)(a). Such limitations are not relevant for our
purposes here.
     4Like subsection (4.1)(2)(a), subsection (4.1)(2)(b) states
that it does not apply to "any member eligible under section
4.5." MCGO § 201.24(4.1)(2)(b).


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enumerated unions5; and (2) those not covered by an existing CBA.

Majority op. ¶13.              The majority's construction is problematic,
because it looks no further to determine why the phrase "by the
terms of" was chosen when in the previous section it was not.
Perhaps it is used because members could still be covered by the
terms of a CBA no longer in effect.                       Since DC-48 members were
not actually covered by an existing CBA on September 29, 2011,
the majority creates, out of thin air, Rule of 75 eligibility
for DC-48 members (along with members of other unions specified

in     subsection         (4.1)(2)(b))          whose     membership        began      after
January 1, 1994, but before January 1, 2006.                         By not accounting
for employees who might still be covered by the terms of an
expired         CBA,    the        majority's       interpretation     of    subsections
(4.1)(2)(a) and (4.1)(2)(b) results in Rule of 75 benefits being
afforded        to     more    DC-48    members       than   called    for     under    the
ordinance.6
       ¶42      The majority's construction of MCGO § 201.24(4.1)(2)

goes       no   further       to   determine    whether      the   different     language
might have meaning.                Instead it conflates "covered by the terms



       5
       Subsections  (4.1)(2)(c)   through  (4.1)(2)(g)   of  the
ordinance   further   define  which   members  of   specifically
enumerated unions, who were covered by the terms of a CBA on a
particular date, are eligible under the Rule of 75.     See MCGO
§ 201.24(4.1)(2)(c)–(g).
       6
       While the cost to taxpayers cannot drive statutory
interpretation, the majority's misinterpretation is not a
distinction without a difference. Indeed, the majority's errant
construction of MCGO § 201.24(4.1)(2) would result in Milwaukee
County taxpayers providing an additional $6.8 million in
benefits.

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of    a     collective      bargaining      agreement"         with      "covered        by     a
collective        bargaining     agreement"      and     declares,        without        more,
that the Board of Supervisors included words that added nothing
of substance.             See majority op., ¶24.                In other words, the

majority         begins    its   analysis       with     an     assumption        that        the
legislative body did not mean what it said.
      ¶43        We most typically do not begin our analysis with an
assumption         that     mandates     one      conclusion          without       further
considering whether the words used might actually have meaning,

especially in the context of a provision that was drafted in
order to exclude certain people from Rule of 75 benefits.                                      If
the Rule of 75 was intended to apply to all, this provision
would be unnecessary.
      ¶44        The majority dashes to interpret MCGO § 201.24(4.1)(2)
by ignoring key language of the text itself and the fact that
each phrase appears in surrounding provisions, for example, MCGO
§ 201.24(3.11).            Under   a   proper     understanding           of      the    plain

meaning of § 201.24(4.1)(2), since DC-48 members were covered by
the terms of a CBA on September 29, 2011, they are eligible for
Rule of 75 benefits only if they were employed on September 29,
2011, and initially became members prior to January 1, 1994.
See       MCGO    § 201.24(4.1)(2)(b).            This        language      has    distinct
meaning as is demonstrated by its use elsewhere.
      ¶45        As noted previously, statutory interpretation requires
an evaluation of the context in which a statute appears, as
statutes are viewed not in isolation, but as part of a whole.
Kalal, 271 Wis. 2d 633, ¶46.                Ordinance interpretation follows

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the same rules.          Ozaukee Cty. Bd. of Adjustment, 152 Wis. 2d at

559.       We thus must consider MCGO § 201.24(4.1)(2) "in relation
to the language of surrounding or closely-related [ordinances]."
Kalal,      271     Wis. 2d 633,       ¶46.          The     context         surrounding
§ 201.24(4.1)(2) provides further support for my plain meaning
interpretation.          Crucially, in close proximity to the Rule of 75
ordinance,        the    Board    of   Supervisors         directly        distinguishes
between      "covered      by    the   terms    of    a     collective       bargaining
agreement" and "covered by a collective bargaining agreement" in

a section dealing with mandatory employee contributions of funds
to the retirement system.               See MCGO § 201.24(3.11).                 Section

201.24(3.11)(1)(a) states, in pertinent part, "Each member of
the employes' retirement system . . . who is not covered by the
terms of a collective bargaining agreement, or who is covered by
a   collective          bargaining     agreement      that     has      adopted      this
ordinance," § 201.24(3.11)(1)(a) (emphasis added), except those
contributing       under    a    different     subsection      must        contribute    a

percentage of the member's compensation under § 201.24(3.11).7
The Board of Supervisors' choice to use differing language in
neighboring sections of the County Employee Retirement System
ordinances should be respected.                 Specifically, the subsection
(3.11)(1)(a)       ordinance      language     "covered      by   the       terms   of   a
collective bargaining agreement" and "covered by a collective
bargaining agreement" is a distinction with a difference.                                We


       7
       Subsections   (3.11)(1)(c)    and    (3.11)(1)(d)   operate
similarly    to    subsection     (3.11)(1)(a).        See    MCGO
§ 201.24(3.11)(1)(c)–(d).


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must   presume that the          Board of Supervisors' decision                          to   use
distinct language was purposeful.                  One of the two phrases would
be    completely    unnecessary        if    the       other       has    the      exact      same
meaning, yet the two phrases coexist, in the disjunctive, and in
the same sentence, hence leading to the observation that they
must   have    different       meanings.          While          the   majority       does    not
assign any import to the different terms used in any section, it
ought to be concerned with whether these phrases were chosen
because they indeed each have a distinct, proscribed meaning.

If they were identical in meaning, subsection (3.11)(1)(a) would
not list them as alternatives to each other.
       ¶46    Subsection (3.11)(1)(a) means to include only employee
retirement       system   members      who       are    "covered         by    a     collective
bargaining agreement that has adopted this ordinance," or who
are    "not    covered    by     the   terms       of        a    collective         bargaining
agreement."       This begs the question:                When would one be subject
"to the terms of" a CBA but not be covered by it?                              The answer to

this question:       members may still be covered by the terms of a
CBA when the CBA has expired but the terms might continue to
apply.
       ¶47    Subsections       (3.11)(1)(e)           and       (3.11)(1)(f)         similarly
illustrate this linguistic distinction.                          Subsection (3.11)(1)(e)
applies to any member "who is covered by a collective bargaining

agreement."          MCGO       § 201.24(3.11)(1)(e)                   (emphasis        added).
Subsection (3.11)(1)(f) applies to any member "who is covered by
the      terms      of      a      collective                bargaining            agreement."
§ 201.24(3.11)(1)(f) (emphasis added).                           Why again presume, as

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the   majority does, that        the    Board   of    Supervisors' choice      to
create these distinctions deserves no significance?                   There are
indeed categories of employees who may be covered by the terms
of a CBA but are not actually covered by a CBA.
      ¶48       Moreover, my interpretation of the plain meaning of
MCGO § 201.24(4.1)(2) is further supported by a review of other
parts      of    the   ordinances,     where    the   Board   of    Supervisors
exclusively uses the phrase "covered by a collective bargaining
agreement," without reference to "the terms of" any CBA.                      See

§ 201.24(2.18)(3)(a) (defining "[n]ormal retirement age" as 64
for a member (a) "who is not covered by a collective bargaining
agreement" at the time his employment terminates; (b) who is
"not an elected official" at the time his employment terminates;
and (c) "whose initial membership in the retirement system began
on    or    after      January   1,     2010"    (emphasis     added));      MCGO
§ 203.2.6.f. (defining "[e]mploye" in part as "[t]hose employes
who are members of a collective bargaining unit covered by a

collective bargaining agreement which (as a result of good faith
bargaining between the county and representatives of such unit)
does not provide for their inclusion" (emphasis added)).
      ¶49       As a practical matter, the majority's interpretation
of MCGO § 201.24(4.1)(2) is further flawed, as it renders the
phrase "by the terms of" surplusage without consideration of how
collective bargaining works.           Given the status quo requirement——
that even the parties agree has been and is controlling——key
terms of the CBA must remain in effect until a successor CBA is
negotiated and agreed to by the employer and the union.                    Might

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that be a reason for using the phrase "by the terms of"?                                   Yes.
Simply stated, certain terms of a CBA may have significance even
after a CBA has expired.                It is undisputed that on September 29,
2011, DC-48 employees were not actually covered by an existing
CBA, as the CBA expired in 2009 and no new CBA was executed.
Despite that, Milwaukee County was still required to maintain
the terms of DC-48's expired CBA regarding base wages.                                    Thus,
terms of DC-48's expired CBA with Milwaukee County remained in
effect, and on September 29, 2011, DC-48 members were covered by

the terms of a CBA despite the fact that the CBA was expired.
The majority's reading of § 201.24(4.1)(2) fails to give any
consideration to this basic principle to which the parties even
agree.
       ¶50    Thus, these ordinances can indeed be interpreted to
give     meaning      to     this       language          and     with     reason,    draw      a
distinction between members "covered by the terms of" a CBA and
members      "covered      by"     a    CBA.            The   majority     claims    that      my

analysis "strays from the text of the ordinance while assigning
unwarranted import to the phrase 'the terms of'" in the CBA.
Majority op., ¶22.               To the contrary, as I have shown, I adhere
to   the     text    of    the    ordinance,            reading    MCGO    § 201.24(4.1)(2)
completely and giving effect to each word in the ordinance.
       ¶51    In     order        for        the        majority's       reading     of    MCGO
§ 201.24(4.1)(2) to pass muster, one must assume that the Board
of Supervisors' choice to sometimes use different, distinct, and
disjunctive         provisions         was    haphazard         and   is   entitled       to   no
consideration whatsoever.                The majority fails to even attempt to

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reconcile how these choices might have meaning.        Therein lies
the Achilles heel in the majority's reasoning.
     ¶52   Due to the majority's significant misinterpretation of
MCGO § 201.24(4.1)(2), I respectfully dissent from the majority
opinion.
     ¶53   I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this dissent.




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