McEwen v. Pierce County

• Decision Date: 12 June 1979
• Docket Number: AFL-CI,No. 78-126,D,78-126
• Citation: 90 Wis.2d 256,279 N.W.2d 469
• Parties: , 102 L.R.R.M. (BNA) 2745 William E. McEWEN, Plaintiff-Respondent, v. PIERCE COUNTY, Defendant, Pierce County Courthouse Employees, Local 556-A, AFSCME,efendant- Appellant.
• Court: Wisconsin Supreme Court

Page 469

279 N.W.2d 469

90 Wis.2d 256, 102 L.R.R.M. (BNA) 2745

William E. McEWEN, Plaintiff-Respondent, v. PIERCE COUNTY, Defendant, Pierce County Courthouse Employees, Local 556-A, AFSCME, AFL-CIO, Defendant- Appellant.

No. 78-126.

Supreme Court of Wisconsin.

Submitted on Briefs May 2, 1979.

Decided June 12, 1979.

Bruce F. Ehlke and Lawton & Cates, Madison, submitted brief for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and John D. Niemisto, Asst. Atty. Gen., submitted brief for plaintiff-respondent.

ABRAHAMSON, Justice.

Pierce County Courthouse Employees, Local 556-A, AFSCME, AFL-CIO (Local 556-A) seeks a determination that the circuit court abused its discretion in denying Local 556-A's motion to defer the circuit court declaratory judgment proceeding so that the Wisconsin Employment Relations Commission (WERC) might first issue a declaratory ruling. The court of appeals denied William E. McEwen's motion to dismiss the appeal and summarily affirmed the order of the circuit court denying Local 556-A's motion to defer to the WERC. We affirm the order of the circuit court.

I.

At all relevant times a collective bargaining agreement existed between Pierce County and Local 556-A, AFSCME. This agreement was entered into pursuant to the provisions of the Municipal Employment Relations Act, secs. 111.70-111.77, Stats. Under the agreement, the position of register in probate is included in the bargaining unit represented by Local 556-A. In August, 1977, William E. McEwen, County Judge of Pierce County, filled a vacancy in the position of register in probate, pursuant to sec. 253.31(1), Stats., ¹ without following the terms of the bargaining agreement for filling a vacancy in this position.

Local 556-A filed a grievance with Pierce County. On October 3, 1977, McEwen commenced an action against Local 556-A and Pierce County in the circuit court for Pierce County for a declaratory judgment pursuant to sec. 806.04(1), Stats., ² asking the circuit court to

"make a binding declaration that the register in probate is an officer of the court pursuant to sec. 865.065, Stats., and that the position cannot be properly included in a bargaining unit because that person is not a 'municipal employe' as defined in sec. 111.70(1)(b), Stats., and that the constitutional concept of separation of powers allows a county judge to appoint a register in probate pursuant to sec. 253.31(1), Stats., without complying with the terms of a collective bargaining agreement to which the court is not a party."

On November 3, 1977, Local 556-A, seeking a declaratory ruling pursuant to sec. 227.06, Stats., ³ filed a petition with the Wisconsin Employment Relations Commission (WERC) requesting the WERC to:

". . . declar(e) its rights relative to the provisions of Sec. 111.70, Wis.Stat., and the terms and conditions of the Agreement bargained pursuant thereto, and in particular Article 5, Section 3 of that Agreement as they relate to Sec. 253.31(1), Wis.Stat., affirming the validity and enforceability of said provisions as they concern the posting of a vacancy in the Register of Probate position and appointment to such a vacancy of a County employee and member of the bargaining unit represented by Local 556-A . . . ."

McEwen filed a motion with the WERC to dismiss or stay the proceedings before WERC, because of the pendency of this action in circuit court. By order and memorandum dated January 17, 1978, WERC indefinitely stayed the petition of Local 556-A pending the outcome of the action in the circuit court, stating: ". . . the Circuit Court case filed by Judge McEwen involves the same issue of statutory construction as the petition for declaratory ruling filed by Local 556-A. It is the Commission's policy not to assert its jurisdiction over issues which also have been submitted to a court, even though the Commission may have primary jurisdiction over the issue. It is for the court to decide whether to honor the Commission's primary jurisdiction."

Local 556-A then served and filed a motion with the circuit court to defer proceedings pending the WERC decision. The circuit court, in a decision and order dated June 23, 1978, and entered June 28, 1978, denied Local 556-A's motion to defer. The circuit court determined that both it and the WERC had jurisdiction over the subject matter of the case; that a question of primary jurisdiction was raised by Local 556-A's motion to defer; and that because McEwen's action raised issues of constitutional law and statutory construction rather than factual issues, the circuit court should exercise its jurisdiction over the matter.

On August 3, 1978, Local 556-A filed at Pierce County Circuit Court a notice of appeal from the order of June 28, 1978 and an affidavit of service. The notice and affidavit were received by the clerk of the court of appeals on August 3, 1978, and were filed on August 9, 1978. McEwen made a motion to dismiss the appeal and for summary affirmance of the circuit court order under sec. 809.21, Stats. In his motion to dismiss, McEwen asserts that the order of June 28, 1978, was not a final order disposing of the entire matter and that Local 556-A failed to seek leave of the court of appeals to appeal the order pursuant to Rule 809.50 within ten days of entry of that order.

On September 20, 1978, the court of appeals entered a decision and order denying McEwen's motion to dismiss Local 556-A's appeal and granting his motion for summary affirmance. The court of appeals found that the order of June 28, 1978, was appealable as an order deciding a question of jurisdiction under sec. 817.33(3)(f), Stats.1975. The court of appeals concluded that the circuit court did not abuse its discretion in exercising its jurisdiction over McEwen's action, because that action raised issues of constitutionality and statutory interpretation rather than issues of fact.

This court granted Local 556-A's petition to review the decision of the court of appeals. Secs. 808.10 and 809.62, Stats. ⁴ We affirm the order of the circuit court.

II.

The order of the circuit court from which the appeal is taken was entered on June 28, 1978. On that date appeals were governed by the provisions on Ch. 817, Stats.1975. Ch. 817, Stats.1975, was repealed, effective August 1, 1978, by Ch. 187, Laws of 1977, secs. 118 and 138. To replace Ch. 817, the legislature enacted Ch. 808, Stats.1977, which took effect on August 1, 1978, By order of this court, Ch. 809, Rules of Appellate Procedure, was also made applicable to all appeals and proceedings in the court of appeals and the supreme court as of August 1, 1978. 83 Wis.2d xiii-xlvi (1978).

Local 556-A's notice of appeal from the June 28, 1978, order was filed with the circuit court on August 3, 1978, and with the court of appeals on August 9, 1978, after Chs. 808 and 809 took effect on August 1. Thus the circuit court order was entered before August 1, 1978, but the appeal process was started after August 1, 1978. The instant case straddles the date of repeal of Ch. 817 and the effective date of Chs. 808 and 809, and therein lies the problem.

McEwen asserts that because the notice of appeal was filed after August 1, 1978, the appeal in the case at bar is controlled by chs. 808 and 809, Stats., not by ch. 817, Stats.1975; that under sec. 808.03(1), Stats., the circuit court order of June 28 is not a final order and hence is not appealable to the court of appeals as of right; that Local 556-A should have filed a petition with the court of appeals within ten days of entry of the circuit court order seeking leave of the court of appeals to appeal the order (secs. 808.03 and 809.50, Stats.); and that because Local 556-A failed to file a petition for leave to appeal within the 10-day period, the instant appeal was not properly before the court of appeals and therefore is not now properly before this court.

Local 556-A maintains that because the order appealed from was entered before August 1, 1978, the appeal is controlled by ch. 817, Stats.1975. Sec. 817.01, Stats.1975, provides that the appeal be taken within three months from service of notice of entry of the circuit court order or six months from the date of entry of the order if no notice is served. ⁵ Local 556-A filed the appeal within this time period.

We conclude that ch. 817, Stats.1975 is applicable to the instant appeal, and the time period provided by sec. 817.01, Stats.1975, not the ten-day time period set forth in sec. 809.50, Rules of Appellate Procedure, governs the case at bar. This conclusion follows from the application of sec. 990.06, Stats., which provides:

"990.06 Repeal or change of law limiting time for bringing actions. In any case when a limitation or period of time prescribed in any act which shall be repealed for the acquiring of any right, or barring of any remedy, or for any other purpose shall have begun to run before such repeal and the repealing act shall provide any limitation or period of time for such purpose, such latter limitation or period shall apply only to such rights or remedies as shall accrue subsequently to the time when the repealing act shall take effect, and the act repealed shall be held to continue in force and be operative to determine all such limitations and periods of time which shall have previously begun to run unless such repealing act shall otherwise expressly provide." ⁶

McEwen argues that if the appeal is governed by Ch. 817, Stats.1975, then Local 556-A filed its appeal with the wrong court: the appeal should have been to the supreme court, not to the court of appeals.

Neither the statutes nor this court's order adopting ch. 809 addresses directly the question raised by McEwen in the instant case. However, the legislature in establishing the court of appeals expressed the general intent that on August 1, 1978, the court of appeals should replace the supreme court as the court to which appeals of judgments and orders are ordinarily directed in...