Hazelton v. State Personnel Com'n

• Decision Date: 03 June 1993
• Docket Number: No. 92-2569,92-2569
• Parties: , 62 Empl. Prac. Dec. P 42,589, 2 A.D. Cases 1145, 4 NDLR P 150 William K. HAZELTON, Petitioner-Respondent, d v. STATE PERSONNEL COMMISSION, Respondent-Appellant, Wisconsin Department of Military Affairs, Intervenor-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 793

505 N.W.2d 793

178 Wis.2d 776, 62 Empl. Prac. Dec. P

42,589, 2 A.D. Cases 1145,

4 NDLR P 150

William K. HAZELTON, Petitioner-Respondent, ^d v. STATE PERSONNEL COMMISSION, Respondent-Appellant, Wisconsin Department of Military Affairs, Intervenor-Appellant.

No. 92-2569.

Court of Appeals of Wisconsin.

Oral Argument June 3, 1993.

Opinion Released Aug. 11, 1993.

Opinion Filed Aug. 11, 1993.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

ANDERSON, Presiding Judge.

The Wisconsin Department of Military Affairs appeals from an order of the circuit court reversing the decision of the State Personnel Commission. The commission held that congressional regulation of personnel criteria for the national guard preempts the application of Wisconsin's anti-discrimination law. We conclude that Congress' clear intent is to occupy the field of regulation of personnel criteria for national guard members. Under the principles of preemption, Congress' occupation of a field prevents Wisconsin from legislating in the same field. Therefore, we reverse.

William K. Hazelton became a part-time member of the Wisconsin Army National Guard (WIARNG) in 1961; in January 1988, he was a major and serving as a chemical staff officer. ¹ In January 1988, Hazelton tested positive for the human immunodeficiency virus (HIV) associated with acquired immune deficiency syndrome (AIDS). The national guard's policy, issued by the Department of the Army, required a second test to confirm the presence of the HIV virus. The results of Hazelton's second test confirmed the presence of the virus in his bloodstream. On February 2, 1988, WIARNG told Hazelton that federal national guard policy required him to select one of three separation options. Hazelton's first option was to retire. He was ineligible for retirement because he had three years to serve before reaching his earliest retirement date. His second option was separation from all military units. Third, he could transfer to the standby reserve where he could earn points toward retirement by paying for his military training. This option was unavailable to Hazelton because army regulations limited an individual to two years in the standby reserve and Hazelton had three years to serve to reach his earliest retirement date.

Hazelton declined to select any of the options for voluntary separation. He believed the army policy on treatment of personnel testing positive for HIV discriminated against members of WIARNG. On March 30, WIARNG notified Hazelton that he would be honorably discharged and involuntarily transferred to the standby reserve.

Hazelton appealed his discharge and transfer through channels to the Secretary of the Army. In this appeal, Hazelton contended that the blanket policy of involuntary separation of officers in the national guard was discriminatory because the army evaluated active duty soldiers on a case-by-case basis and if HIV-positive soldiers were asymptomatic they could remain on duty. The army denied Hazeltons appeal and approved his involuntary separation on December 27, 1988.

During 1988, the policy of the national guard concerning members who tested positive for HIV was in a state of transformation. Hazelton's discharge came under a policy issued by the Department of the Army's national guard bureau on December 2, 1987. This policy required the involuntary transfer of members to the standby reserve if they tested positive for HIV. This policy was later incorporated in Army Regulation 600-110, chapter 5, ARNG and USAR Personnel Policies and Procedures, Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (HIV). The updated version of this regulation was effective April 11, 1988. While requiring the involuntary transfer to the standby reserve of soldiers in the national guard or ready reserve, the regulation permitted a case-by-case evaluation of active duty soldiers testing positive for HIV. While Hazeltons appeal was pending, the national guard rescinded the policy to involuntarily remove HIV-positive members from the national guard and adopted the regular army's case-by-case evaluation.

Hazelton filed a "Charge of Discrimination" with the State Personnel Commission in November 1988 alleging that under the provisions of secs. 111.31 to 111.395, Stats., Wisconsin's Fair Employment Act (WFEA), the Wisconsin Department of Military Affairs (DMA) discriminated against him when it involuntarily transferred him to the standby reserve. ² He alleged that he had been discriminated ³ against both because of a handicap ⁴ and his sexual orientation. ⁵

DMA initially objected to the commissions jurisdiction. DMA argued before the commission that Hazelton was not an employee of the state and not covered by WFEA. According to DMA, the decision to involuntarily transfer Hazelton was made by the Secretary of Defense and not WIARNG. The commission held that membership in WIARNG has characteristics that encourage the application and protection of WFEA to WIARNG and its members. The commission acknowledged that DMA was only enforcing the policy of the Secretary of Defense but that it did so as an employer and was subject to WFEA.

The parties then filed a stipulation of facts and briefed the issue of application of WFEA to Hazelton's involuntary transfer. The commission held that it did not have authority to act on Hazelton's complaint and dismissed the complaint on the grounds of federal preemption. The commission reasoned that "[t]he federal government has regulated where it has constitutional and statutory authority to regulate--i.e., with respect to the personnel criteria for national guard membership--and these federal regulations are in conflict with state law governing nondiscrimination in employment."

Hazelton filed an action for judicial review of the commissions decision under secs. 111.395 and 227.53, Stats. He sought reversal of the commissions conclusion that federal preemption precluded the application of WFEA to his involuntary transfer to the standby reserve. He also asked the circuit court to hold that DMA had arbitrarily and capriciously interpreted and applied the applicable army regulations and arbitrarily and capriciously denied his appeal. He sought reinstatement into WIARNG with the restoration of all back pay and benefits. In the alternative, he asked for a retroactive award of credit for service from April 1, 1988.

The circuit court reversed the commissions decision and remanded the case for a hearing. The circuit court determined that Congress has not exercised its constitutional authority to impose a standard of order on the national guard units of the states. The circuit court reasoned that the reservation to Congress of the right to prescribe discipline for the national guard included the authority to require state national guard units to adopt and enforce personnel policies concerning HIV-positive individuals.

The circuit court decided that no "federal statute expressly or implicitly informs the state that once it opts into inclusion into the federal national guard it loses its option to decline to adopt regulations contrary to its own policies." The court held that, under the test of federal preemption, Congress has not acted to the absolute exclusion of a states fair employment laws in the regulation of an individuals qualifications to serve in the national guard.

On appeal, DMA argues that Congress has exercised its authority to preempt the enforcement of WFEA. DMA points out that the constitution establishes the supremacy of federal law in the raising and supporting of armies and in the organization and discipline of the militia. DMA asserts that because there is an actual conflict with the federal policy of blanket discharge of HIV-positive national guard members and WFEAs policy of case-by-case consideration, the federal law controls. DMA questions the circuit courts conclusion that the governing statutory scheme gives Wisconsin the option to decline to adopt regulations contrary to its own policies. DMA posits that the militia clause does not permit Wisconsin to accept and reject federal regulations of the national guard on a case-by-case basis. ⁶

Although this appeal is from the order of the circuit court, we conduct a de novo review of the commission's decision that the commission was preempted from action by federal law. See Racine Unified School Dist. v. LIRC, 164 Wis.2d 567, 583, 476 N.W.2d 707, 713 (Ct.App.1991). Whether federal law preempts state law is a question of law. Universal Foods Corp. v. LIRC, 161 Wis.2d 1, 5, 467 N.W.2d 793, 794 (Ct.App.), cert. denied, 502 U.S. 921, 112 S.Ct. 332, 116 L.Ed.2d 273 (1991). Ordinarily we give deference to an agency's decisions on questions of law because of the agency's special expertise and experience. Racine Unified, 164 Wis.2d at 583, 476 N.W.2d at 713. When the decision of the agency deals with the scope of the agency's powers, deference is not appropriate. See Board of Regents of the Univ. of Wis. Sys. v. Wisconsin Personnel Comm'n, 103 Wis.2d 545, 551, 309 N.W.2d 366, 369 (Ct.App.1981). Also, when this court is as competent as the agency to decide a question of law, we do not give deference to the agency's decision. Schachtner v. DILHR, 144 Wis.2d 1, 4, 422 N.W.2d 906, 908 (Ct.App.1988).

Federal preemption of state law is not a concept unique to administrative law. To the contrary, it is an issue in many areas of the law. See, e.g., Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991), rev'g Mortier v. Town of Casey, 154 Wis.2d 18, 452 N.W.2d 555 (1990) (the United States Supreme Court reversing the conclusion of the Wisconsin Supreme Court that federal law preempts a town ordinance regulating the use of pesticides); State v. Bruckner, 151 Wis.2d 833, 857, 447 N.W.2d 376, 386 (Ct.App.1989) (holding that the federal statute regulating child pornography in interstate commerce does...