Milwaukee Deputy Sheriffs' Ass'n v. Milwaukee Cnty.

• Decision Date: 01 June 2016
• Docket Number: No. 2015AP1577.,2015AP1577.
• Citation: 370 Wis.2d 644,883 N.W.2d 154
• Parties: MILWAUKEE DEPUTY SHERIFFS' ASSOCIATION, Plaintiff, David A. Clarke, Jr., Sheriff of Milwaukee County, Plaintiff–Appellant, v. MILWAUKEE COUNTY, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

370 Wis.2d 644

883 N.W.2d 154

MILWAUKEE DEPUTY SHERIFFS' ASSOCIATION, Plaintiff,

David A. Clarke, Jr., Sheriff of Milwaukee County, Plaintiff–Appellant,^†

v.MILWAUKEE COUNTY, Defendant–Respondent.

No. 2015AP1577.

Court of Appeals of Wisconsin.

Submitted on Briefs April 5, 2016.

Opinion Filed June 1, 2016.

On behalf of the plaintiff-appellant, the cause was submitted on the brief of Michael A.I. Whitcomb of Law Offices of Michael A.I. Whitcomb in Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of Ronald S. Stadler and Aaron J. Graf of Mallery & Zimmerman, S.C. of Milwaukee.

Before KESSLER, BRENNAN and BRASH, JJ.

BRASH

, J.

¶ 1 Sheriff David A. Clarke, Jr. appeals an order granting Milwaukee County's motion to dismiss. Sheriff Clarke argues that the circuit court erred in dismissing his claim on the grounds that he failed to establish that he has a legal basis for the relief he sought. Specifically, Sheriff Clarke argues that he is entitled to relief on the grounds that: (1) the County's 2015 budget is arbitrary and unreasonable because it prevented him from fulfilling his constitutional and statutory duties; (2) the hiring and appointment of deputy sheriffs is a constitutionally protected power of the sheriff; and (3) Wis. Stat. § 59.26(2)

(2013–14)¹ gives him the authority to appoint as many law enforcement officers as he considers necessary to fulfill his constitutional and statutory duties. We disagree and affirm.

Background

¶ 2 In his 2015 requested budget, Sheriff Clarke asked the County for funding for an additional 119 deputy sheriff positions and an additional fifty-eight correction officer positions. The County's 2015 Budget only authorized an additional seventeen deputy sheriff positions. In response, on February 2, 2015, the Milwaukee Deputy Sheriffs Association² and Sheriff Clarke jointly filed a complaint against the County seeking declaratory and injunctive relief and a writ of mandamus. All claims in the complaint related to the number of new deputy sheriff positions created by the 2015 budget. Specifically, Sheriff Clarke sought a declaration that the 2015 budget was arbitrary and unreasonable, that the 2015 budget created unsafe and unreasonable working conditions, and that the 2015 budget prevented him from fulfilling his constitutional and statutory duties. Ultimately, Sheriff Clarke sought relief in the form of an order requiring the addition of ten deputy sheriff sergeants, seven correctional officer lieutenants, seventy-five deputy sheriffs, and forty-three correctional officers.

¶ 3 On February 23, 2015, the County filed a motion to dismiss all claims. The County argued that Sheriff Clarke's complaint should be dismissed because he failed to allege sufficient facts to support his claims. The County also argued that the relief Sheriff Clarke sought was barred by the separation of powers doctrine.

¶ 4 On July 1, 2015, the circuit court issued a written decision granting the County's motion to dismiss Sheriff Clarke's claims. The circuit court made it clear that it did not base its decision on whether the action was justiciable, as the County never raised any justiciability issues.³ Instead, the circuit court concluded that Sheriff Clarke did not plead sufficient facts showing that he was entitled to the relief he sought.

On July 13, 2015, the circuit court entered its final order dismissing Sheriff Clarke's claims with prejudice. This appeal follows.

Discussion

¶ 5 “A motion to dismiss for failure to state a claim ‘tests the legal sufficiency of the complaint.’ ” Hornback v. Archdiocese of Milwaukee, 2008 WI 98, ¶ 13, 313 Wis.2d 294, 752 N.W.2d 862

(citation and one set of quotation marks omitted). We liberally construe pleadings to achieve substantial justice between the parties. See

Strid v. Converse, 111 Wis.2d 418, 422, 331 N.W.2d 350 (1983) ; see also Wis. Stat. § 802.02(6). To that end, we accept as true all well-pleaded facts in a complaint, as well as the reasonable inferences therefrom. See

DeBruin v. St. Patrick Congregation, 2012 WI 94, ¶ 11, 343 Wis.2d 83, 816 N.W.2d 878. Factual allegations in a complaint, however, must be “ ‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.’ ” Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶ 25, 356 Wis.2d 665, 849 N.W.2d 693 (citation omitted). “[I]f it appears to a certainty that no relief can be granted under any set of facts that the plaintiff can prove in support of [his] allegations[,]” we will dismiss the complaint. See

Strid, 111 Wis.2d at 422, 331 N.W.2d 350. Whether a complaint states a claim upon which relief can be granted is a question of law that we review de novo. See

Data Key Partners, 356 Wis.2d 665, ¶ 17, 849 N.W.2d 693.

¶ 6 At its core, Sheriff Clarke's argument is that the County's 2015 budget did not provide sufficient funds for him to hire the number of law enforcement officers that he considers necessary for him to fulfill his constitutional and statutory duties. As such, Sheriff Clarke argues that the County's 2015 budget is arbitrary and unreasonable. Sheriff Clarke further argues that, because the County's budget is arbitrary and unreasonable, he is entitled to a writ of mandamus requiring the County Board of Supervisors and the County Executive to authorize and create additional deputy sheriff positions, and for injunctive relief enjoining the County from preventing the hiring of additional deputy sheriffs. We begin with a discussion of the scope of a sheriff's constitutional and statutory powers.

I. A Sheriff's Constitutional and Statutory Powers.

a. Constitutional Powers.

¶ 7 “The Wisconsin Constitution establishes the office of sheriff ... [but] 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

(some formatting altered). Therefore, we look to case law for guidance. See

Milwaukee Deputy Sheriff's Ass'n v. Clarke, 2009 WI App 123, ¶ 9, 320 Wis.2d 486, 772 N.W.2d 216. Initially, a sheriff's constitutional powers were those which were part of the nature of the office of the sheriff at common law when the constitution was adopted. See

State ex rel. Kennedy v. Brunst, 26 Wis. 412, 414–15 (1870). Later cases, however, narrowed a sheriff's constitutional powers to only “those immemorial principal and important duties that characterized and distinguished the office.” State ex rel. Milwaukee Cnty. v. Buech, 171 Wis. 474, 482, 177 N.W. 781 (1920)

.

¶ 8 In Heitkemper v. Wirsing, 194 Wis.2d 182, 533 N.W.2d 770 (1995)

, the Wisconsin Supreme Court “rejected any interpretations of Brunst which tried to include within the constitutionally protected functions of the sheriff all powers held by the sheriff at the common law.” Heitkemper, 194 Wis.2d at 189, 533 N.W.2d 770

. “If that were true, a constitutional amendment would be necessary in order to change the duties of sheriffs in the slightest degree.” Buech, 171 Wis. at 482, 177 N.W. 781. Therefore, a sheriff's powers are constitutionally protected only if they are “immemorial, principal, and important duties ... that are peculiar to the office of sheriff and that characterize and distinguish the office.” Kocken, 301 Wis.2d 266, ¶ 39, 732 N.W.2d 828.

¶ 9 We recognize the following powers of the sheriff as constitutionally protected: the operation of the jail, attendance on the courts, maintaining law and order, and preserving the peace. See id., ¶¶ 52–57. Even if a duty is related to one of these powers, however, that duty may still be regulated if it is a “nondistinctive, mundane and commonplace [,] internal management and administrative [duty] of a sheriff.” Id., ¶ 60 (internal quotation marks omitted). Kocken further states:

the constitution does not prohibit all legislative change in the powers, duties, functions, and liabilities of a sheriff as they existed at common law. [I]nternal management and administrative duties ... [that] neither gave character nor distinction to the office of sheriff ... fall within the mundane and common administrative duties of a sheriff which may be regulated by the legislature.

Id., ¶ 40 (citation, footnotes, and internal quotation marks omitted; brackets and ellipses in original).

¶ 10 Sheriff Clarke argues that he has a constitutional right to appoint law enforcement officers. We disagree.

¶ 11 In Buech, the Supreme Court held that:

While at common law the sheriff possessed the power to appoint deputies, it was not a power or authority that gave character and distinction to the office.... It was more in the nature of a general power possessed by all officers to a more or less extent, and was not peculiar to the office of sheriff.

Id., 171 Wis. at 482, 177 N.W. 781

. This holding has been affirmed over the years. See

Manitowoc Cnty. v. Local 986B, AFSCME, AFL–CIO, 168 Wis.2d 819, 826–27, 484 N.W.2d 534 (“the power of appointing deputies, being rather mundane and commonplace, did not give character and distinction to the office of sheriff at common law.”); see also

Kocken, 301 Wis.2d 266, ¶¶ 61–62, 732 N.W.2d 828 (“[t]he constitutional prerogative of the office of sheriff to maintain law and order and preserve the peace does not encompass the power to appoint or dismiss deputies. The appointment and dismissal of deputies are non-distinctive internal management and administrative tasks.”). Therefore, the hiring and appointment of deputies is a function that may be regulated. See

Heitkemper, 194 Wis.2d at 193, 533 N.W.2d 770. Accordingly, we conclude that Sheriff Clarke does not have constitutional authority to appoint law enforcement officers.

b. Statutory Powers.

¶ 12 Sheriff Clarke also argues that he has unfettered statutory power to appoint law enforcement officers. We disagree.

¶ 13 Wisconsin Stat. § 59.26(2)

states that “the sheriff may appoint as many other deputies as the sheriff considers proper.” Sheriff Clarke simply...