Milwaukee Deputy Sheriff's Ass'n v. Clarke

• Decision Date: 02 June 2009
• Docket Number: No. 2008AP2290.,2008AP2290.
• Citation: 2009 WI App 123,772 N.W.2d 216
• Parties: MILWAUKEE DEPUTY SHERIFF'S ASSOCIATION, Eric Berlin and Thomas Lamothe, Plaintiffs-Respondents, v. Sheriff David A. CLARKE, Jr. and Milwaukee County, Defendants-Appellants.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

772 N.W.2d 216

2009 WI App 123

MILWAUKEE DEPUTY SHERIFF'S ASSOCIATION, Eric Berlin and Thomas Lamothe, Plaintiffs-Respondents, v. Sheriff David A. CLARKE, Jr. and Milwaukee County, Defendants-Appellants.^†

No. 2008AP2290.

Court of Appeals of Wisconsin.

Submitted on Briefs February 5, 2009.

Opinion Filed June 2, 2009.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Molly J. Zillig, Principal Assistant Corporation Counsel, Milwaukee County Corporation Counsel.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Jonathan Cermele of Cermele & Associates, S.C., of Milwaukee.

Before CURLEY, P.J., KESSLER and BRENNAN, JJ.

¶ 1 CURLEY, P.J

Sheriff David A. Clarke, Jr., and Milwaukee County (collectively referred to as Sheriff Clarke) appeal from the portion of the trial court's order interpreting WIS. STAT. § 59.27(4) (2007-08) "to allow David A. Clark[e] Jr., as Milwaukee County Sheriff, to perform the duties identified therein either personally, or by means of the undersheriff of the Milwaukee County Sheriff's Office, or by means of deputies of the Milwaukee County Sheriff's Office (MCSO)."¹ (Parenthetical added.) We conclude that the service and execution of trial court processes, writs, precepts, and orders constitute immemorial, principal and important duties that characterize and distinguish the office of sheriff. As such, Sheriff Clarke has the constitutional authority to determine how to carry out those duties. Accordingly, we reverse that portion of the trial court's ruling at summary judgment to the contrary and remand for further proceedings consistent with this decision.

I. BACKGROUND.

¶ 2 This matter arises out of a lawsuit filed by the Milwaukee Deputy Sheriff's Association and two of its members (collectively referred to as DSA) seeking a declaration that Sheriff Clarke's attempts to contract with an outside agency for inmate transport services violated WIS. STAT. §§ 302.06 and 59.27(4). DSA also asked the trial court to order Sheriff Clarke to use only its members for the transport of prisoners, mental health patients, and juveniles in custody.

¶ 3 DSA is comprised of sworn, nonsupervising deputies employed by Milwaukee County. When Sheriff Clarke assumed office, DSA members handled all intrastate transports of individuals in custody. In 2007, in an effort to save money and free up additional deputies to work in the field, MCSO considered the possibility of contracting with a private company to provide intrastate transport services for individuals in custody. MCSO prepared a Request for Proposal (RFP) seeking the services of a contract provider of inmate transport. The RFP was published on Milwaukee County's website and in a newspaper advertisement.

¶ 4 MCSO received three proposals from various providers and, after rating the proposals, determined that Transcor had received the highest rating. Pursuant to the terms of the contract that was drafted, Transcor would be responsible for the intrastate transport of mental health patients, juveniles, and prisoners. Seven types of required transports were included in the contract. These were described by Sheriff Clarke in an affidavit as follows:

The first type of transport involves the execution of a court-ordered warrant. In these instances, a warrant is issued to pick up a defendant for an appearance in court. These individuals are picked up from county jails, state prisons, juvenile facilities, or mental health institutes.

The second type of transport involves the execution of a court-ordered writ. In these instances, a person who is being held in custody is transported from a county jail, state prison, juvenile facility, or mental health institute to Milwaukee County for a court appearance. The third type of transport involves a court-ordered writ directing the return of these individuals to the original facilities.

The fourth type of transport is a mental health transport. These transports are initiated by way of a court order remanding a patient to a state facility.

The fifth type of transport arises from a court order directing newly-sentenced inmates to be transported to a correction facility.

The sixth type of transport involves revocation orders and warrants. In these transports, a court order is issued to pick up a defendant being housed in county jails, state prisons, juvenile facilities or mental health institutes, and to return them to the Milwaukee County Jail prior to a scheduled court date.

The contract also provides for the transport of juveniles. These transports involved disposition orders, wherein a judge orders a juvenile to be delivered to a juvenile or other facility.

(Paragraph numbering omitted.)

¶ 5 After DSA filed suit, Sheriff Clarke sought summary judgment, arguing that the transport services involved are within the realm of his constitutional authority and that consequently, he can direct the method and manner of such services. DSA likewise sought summary judgment (and a declaratory ruling) arguing the converse: that the transport services are outside the realm of Sheriff Clarke's constitutional authority such that he cannot privatize their handling.

¶ 6 Ruling in favor of Sheriff Clarke in part and in favor of DSA in part, the trial court concluded that Sheriff Clarke has the authority to determine how to effectuate WIS. STAT. § 302.06 duties, but not WIS. STAT. § 59.27(4) duties.² Specifically, the trial court interpreted § 59.27(4) "to allow David A. Clark[e] Jr., as Milwaukee County Sheriff, to perform the duties identified therein either personally, or by means of the undersheriff of [MCSO], or by means of deputies of [MCSO]." As a result, Sheriff Clarke could not privatize those duties. Sheriff Clarke now appeals.

II. ANALYSIS.

A. Standard of Review.

¶ 7 We review de novo a trial court's grant of summary judgment. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment must be granted when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). "The effect of counter-motions for summary judgment ... is an assertion by the parties that the facts are undisputed, that in effect the facts are stipulated, and that only issues of law are before the court." Eichenseer v. Madison-Dane County Tavern League, Inc., 2008 WI 38, ¶ 4, 308 Wis.2d 684, 748 N.W.2d 154.

B. Sheriff Clarke has constitutional authority over the duties set forth in WIS. STAT. § 59.27(4).

¶ 8 The issue before us is whether the "serv[ice] or execut[ion of] all processes, writs, precepts and orders issued or made by lawful authority and delivered to the sheriff" falls within Sheriff Clarke's constitutional powers, rights, and duties. See WIS. STAT. § 59.27(4).³ As set forth below, we hold that these are immemorial, principal, and important duties that characterize and distinguish the office of sheriff, and as such, they fall within Sheriff Clarke's constitutional powers. Consequently, the trial court erred as a matter of law when it concluded that Sheriff Clarke could not privatize those duties.

¶ 9 Although the Wisconsin Constitution establishes the office of sheriff, it "does not delineate the powers, rights, and duties of the office of sheriff." Kocken v. Wisconsin Council 40, AFSCME, AFL-CIO, 2007 WI 72, ¶¶ 31, 33, 301 Wis.2d 266, 732 N.W.2d 828; see also WIS. CONST. art. VI, § 4. As a result, we look to the case law for guidance.

¶ 10 "`It is the nature of the job [in question] ... which must be analyzed in light of the sheriff's constitutional powers.'" Wisconsin Prof'l Police Ass'n/Law Enforcement Employee Relations Division v. Dane County, 149 Wis.2d 699, 710, 439 N.W.2d 625 (Ct.App.1989) (WPPA II) (ellipses in WPPA II; quoting Wisconsin Prof'l Police Ass'n v. County of Dane, 106 Wis.2d 303, 312, 316 N.W.2d 656 (1982) (WPPA I), which was remanded for a determination of the specific duties of the "court officer" in question, because they were not clear from the record). "If the duty is one of those immemorial principal and important duties that characterized and distinguished the office of sheriff at common law, the sheriff `chooses his own ways and means of performing it.'" Id. (quoting WPPA I, 106 Wis.2d at 314, 316 N.W.2d 656). In contrast, where the "powers, rights, and duties of the office of sheriff ... are `mundane and commonplace' `internal management and administrative' duties, even if they are ever-present aspects of the constitutional office, [they] are not accorded constitutional status." Kocken, 301 Wis.2d 266, ¶ 42, 732 N.W.2d 828.

¶ 11 At the outset, DSA argues that the transport of prisoners was not peculiar to, nor did it characterize and distinguish the office of the sheriff at common law. With respect to the notion of peculiarity, DSA relies on our supreme court's statement in Kocken that "immemorial, principal, and important duties of the sheriff at common law that are peculiar to the office of sheriff and that characterize and distinguish the office are constitutionally protected from legislative interference." See id., 301 Wis.2d 266, ¶ 39, 732 N.W.2d 828 (emphasis added); see also Ozaukee County v. Labor Ass'n of Wis., 2008 WI App 174, ¶ 20, 315 Wis.2d 102, 763 N.W.2d 140 (citing Kocken for this same proposition).

¶ 12 DSA asserts that as part of its official duties, the U.S. Marshal transported prisoners at the time Wisconsin's constitution was ratified. As such, DSA contends: "Given the concomitant duties of a Marshal and Sheriff prior to our constitution having been ratified, the transportation of prisoners cannot be something that was either `peculiar to' or gave `character and distinction to' the office of sheriff at common law." Consequently, DSA argues that Sheriff Clarke cannot invoke constitutional authority over that task.

¶ 13 Based on the recent decision in Brown County Sheriff's Department Non-Supervisory Labor Association...