Milwaukee County v. Milwaukee Dist. Council 48-American Federation of State, County and Municipal Employees, AFL-CIO

• Decision Date: 07 September 1982
• Docket Number: No. 81-1185,AFL-CIO,AFL-CI,I,81-1185
• Parties: MILWAUKEE COUNTY, a municipal body corporate, Plaintiff-Appellant, v. MILWAUKEE DISTRICT COUNCIL 48--AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,; Joseph Robison, individually and as Executive Director of Milwaukee District Council 48, AFSCME,; and Wisconsin Employment Relations Commission, Defendants-Respondents, Coalition of American Public Employees (CAPE); Professional Fire Fighters of Wisconsin; Wisconsin Council of County and Municipal Employees, Dist. Council 40, AFSCME,; Wisconsin County Police Association; Wisconsin Professional Policemen's Association (WPPA); and Wisconsin State Employes Union, District Council 24, AFSCME,, Intervenors, Wisconsin Education Association Council, Additional Intervenors.
• Court: Wisconsin Court of Appeals

Page 350

325 N.W.2d 350

109 Wis.2d 14

MILWAUKEE COUNTY, a municipal body corporate, Plaintiff-Appellant, v. MILWAUKEE DISTRICT COUNCIL 48--AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO; Joseph Robison,

individually and as Executive Director of Milwaukee District

Council 48, AFSCME, AFL-CIO; and Wisconsin Employment

Relations Commission, Defendants-Respondents,

Coalition of American Public Employees (CAPE); Professional

Fire Fighters of Wisconsin; Wisconsin Council of County and

Municipal Employees, Dist. Council 40, AFSCME, AFL-CIO;

Wisconsin County Police Association; Wisconsin Professional

Policemen's Association (WPPA); and Wisconsin State

Employes Union, District Council 24, AFSCME, AFL-CIO, Intervenors,

Wisconsin Education Association Council, Additional Intervenors.

No. 81-1185.

Court of Appeals of Wisconsin.

Argued April 26, 1982.

Opinion Released Sept. 7, 1982.

Opinion Filed Sept. 7, 1982.

[109 Wis.2d 16] Patrick J. Foster, Principal Asst. Corp. Counsel, Milwaukee, argued, for appellant; George E. Rice, Deputy Corp. Counsel, Milwaukee County, on brief.

Alvin R. Ugent, Suzanne[109 Wis.2d 17] Schalig and Podell, Ugent & Cross, S.C., Milwaukee, for respondents Milwaukee Dist. Council 48 and Joseph Robison.

David C. Rice, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent Wisconsin Employment Relations Com'n.

Richard V. Graylow and Lawton & Cates, Madison, for intervenors.

Bruce Meredith, Madison, staff counsel, for additional intervenor Wisconsin Educ. Ass'n Council.

Thomas A. Schroeder, Madison, legal counsel, amicus curiae for Wisconsin County Boards Ass'n.

Burt P. Natkins, Madison, legal counsel, amicus curiae for League of Wisconsin Municipalities.

Before FOLEY, P.J., and DEAN and CANE, JJ.

CANE, Judge.

The primary issue on appeal is whether the mediation-arbitration provisions of the Municipal Employment Relations Act, sec.

111.70(4)(cm), Stats., is a constitutional delegation of authority. Because we conclude it is, we affirm

Milwaukee County and Milwaukee District Council 48 (Council) attempted to negotiate a collective bargaining agreement for 1981 and subsequent years. During these negotiations, the Council petitioned the Wisconsin Employment Relations Commission (WERC) for mediation-arbitration pursuant to the Municipal Employment Relations Act (MERA), sec. 111.70, Stats. ¹ A

mediator was [109 Wis.2d 18] appointed pursuant to MERA to determine whether an impasse in negotiations required the appointment of a mediator-arbitrator

[109 Wis.2d 19] Milwaukee County then filed an action in circuit court for a temporary injunction declaring sec. 111.70(4)(cm) [109 Wis.2d 20] unconstitutional because it illegally delegates legislative authority. The court denied the request for a temporary injunction, and both sides moved for summary judgment. The circuit court granted the Council's motion for summary judgment declaring sec. 111.70(4)(cm) constitutional, and, as applied, a lawful delegation of authority. Because of the statewide importance of this issue, we accepted amicus curiae briefs from the Wisconsin County Board's Association, the League of Wisconsin Municipalities, and intervention by other captioned organizations.

[109 WIS.2D 21] STANDING TO CHALLENGE

One issue raised is whether Milwaukee County has standing to challenge the constitutionality of MERA. The general rule is that a state agency or municipality cannot challenge the constitutionality of a statute. City of Madison v. Ayers, 85 Wis.2d 540, 544, 271 N.W.2d 101, 103 (1978). Because the state has created counties as agencies exercising those governmental powers entrusted to them, the right of a county to challenge legislative acts is also restricted. Brown County v. Department of Health & Social Services, 103 Wis.2d 37, 43, 307 N.W.2d 247, 250 (1981). This general rule, however, is subject to two exceptions:

(1) If it is the agency's official duty to appeal, or the agency will be affected if it fails to do so and the statute is held invalid; State ex rel. City of La Crosse, v. Rothwell, 25 Wis.2d 228, 233, 130 N.W.2d 806, 808-09 (1964). This exception applies only to cases between private litigants and a municipality or state agency, County of Dane v. Wisconsin Dep't of Health & Soc. Serv., 79 Wis.2d 323, 331, 255 N.W.2d 539, 544 (1977); and

(2) If the issue is of great public concern; Rothwell, at 233, 130 N.W.2d at 809.

Both exceptions apply in this case. This is a dispute between a municipality, Milwaukee County, and private litigants, Milwaukee District Council 48. Also, the county will be affected if MERA is held invalid. Finally, MERA was enacted in response to the controversial public employee strikes

throughout Wisconsin, and the statute affects the entire nature of negotiations between municipalities and their employees. Both sides therefore agree that the statutory procedure for binding arbitration is an issue of great public concern

[109 Wis.2d 22] It is also argued that Milwaukee County is estopped from challenging the statute because it participated in arbitration and enjoyed the statutory benefits of the statute. One may not retain the benefits of a statute and subsequently attack its constitutionality. State v. Keehn, 74 Wis.2d 218, 222, 246 N.W.2d 547, 549 (1977). Here, however, Milwaukee County did initially challenge MERA before the circuit court; it participated in the arbitration only after the circuit court ordered it to do so. This is not a situation where the county employed the statute to determine the arbitration results and then attacked its constitutionality. Accordingly, the principle of estoppel does not apply to defeat Milwaukee County's constitutional challenge.

CONSTITUTIONALITY OF MERA

The central issue is the constitutionality of MERA. Milwaukee County contends that MERA is an unconstitutional delegation of legislative authority for three reasons.

First, Milwaukee County contends article IV, section 22, of the Wisconsin Constitution requires that a delegation by the legislature of local and legislative matters affecting counties must be made to the county board of supervisors. ² It argues that arbitrators' decisions under the statute are legislative in nature. Support for this argument has been recognized in a case involving the constitutionality of Utah's Fire Fighters Negotiation Act, which provided for an arbitration panel. The Utah court concluded that because the panel's decision affects the [109 Wis.2d 23] allocation of public resources, the level of public services provided, the costs of government, and consequently may necessitate an increase in taxes, such decisions are legislative-political. Salt Lake City v. International Ass'n of Firefighters, Locals 1645, 593, 1654, and 2064, 563 P.2d 786 (Utah 1977). A similar result was reached in Dearborn Fire Fighters Union, Local No. 412 v. City of Dearborn, 394 Mich. 229, 231 N.W.2d 226 (1975). Although an arbitrator acting under the statutes in this case does not have authority to levy taxes, Milwaukee County reasons that the practical effect of the arbitrator's decision may force Milwaukee County to increase its taxes, which would imply that the arbitrator's decision was legislative-political.

Second, Milwaukee County contends the statute is unconstitutional because the arbitrator is not accountable to the electorate. Milwaukee County supports this contention by again citing Dearborn, Salt Lake City, and Town of Berlin v. Santiguida, 98 LRRM 3259 (Conn.Super.Ct.1978), which held that officials engaged in governmental decision-making, e.g., setting budgets, salaries, and other terms and conditions of public employment, must be accountable to the citizens they represent. These cases conclude that binding arbitration removes such decisions from the elected officials and unlawfully places them in the hands of an outsider who has no accountability to the public. Milwaukee County urges us to adopt the same rationale and declare the statute unconstitutional.

Finally, Milwaukee County contends that the statute is unconstitutional because it does not provide adequate procedural and judicial safeguards. Milwaukee County argues that MERA makes no provision for meaningful judicial review, and that even the limited judicial review opportunities found in ch. 788, Stats., are expressly prohibited by sec. 111.70(4)(cm)8.

[109 Wis.2d 24] In determining the validity of Milwaukee County's constitutional challenge, we are mindful of the established principle that a strong presumption of constitutionality

attaches to all legislative acts. One attacking a statute's validity has the burden of demonstrating its unconstitutionality beyond a reasonable doubt. Every presumption must be indulged to sustain the law if possible, and all doubts must be resolved in favor of constitutionality. Modern v. McGinnis, 70 Wis.2d 1056, 1072, 236 N.W.2d 240, 246 (1975); Jenks v. DILHR, 107 Wis.2d 714, 723, 321 N.W.2d 347, 352 (Ct.App.1982)

Our supreme court has determined that a delegation of authority will be upheld if three tests are satisfied:

(1) The legislative purpose is ascertainable. Watchmaking Examining Bd., v. Husar, 49 Wis.2d 526, 534-36, 182 N.W.2d 257, 262 (1971);

(2) There are sufficient standards to limit the exercise of such power. Wisconsin Solid Waste Recycling Authority v. Earl, 70 Wis.2d 464, 235 N.W.2d 648, 666 (1975);

(3) There are procedural and judicial safeguards. Westring v. James, 71 Wis.2d 462, 468, 238 N.W.2d 695, 698 (1976).

Legislative Purpose

The legislative purpose is set forth in sec. 111.70(6), Stats.

The public policy of the state as to labor disputes arising in municipal employment is to encourage voluntary settlement through the procedures of collective bargaining. Accordingly, it is in the public interest that municipal employes so desiring be given an opportunity to bargain collectively with the municipal employer through a labor organization...