Rehrauer v. City of Milwaukee

Decision Date26 June 2001
Docket NumberNo. 00-2090.,00-2090.
Citation2001 WI App 151,631 N.W.2d 644,246 Wis.2d 863
PartiesJames A. REHRAUER, James D. Prestidge, Glenn W. Schneeberg, Roger L. O'Brien and Glen A. Dickau, Plaintiffs-Appellants, Cornelius MIRR, Joseph C. Kulakowski, Thomas L. Piorier, George Wickboldt, James Karbouski, Edwin C. Raasch, Donald C. Rode, Daniel A. Zaharias, Lyle A. Lance, Michael R. Horbinski, Sr., Robert L. Singer, Thaddeus J. Golos, Ervin Pieterzak, Walter R. Radke, James H. Radke, Lawrence W. Lee, Thomas A. Davey, Jr., Daniel D. Tetzlaff, Noel E. Nogalski and Donald J. Pluta, Plaintiffs, v. CITY OF MILWAUKEE and Milwaukee Employes' Retirement System Annuity and Pension Board, Defendants-Respondents.
CourtWisconsin Court of Appeals

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Donald Roy Fraker of Fraker Law Firm, S.C., of Mequon.

On behalf of the defendants-respondents, the cause was submitted on the brief of Grant F. Langley, city attorney, and Ellen H. Tangen, assistant city attorney, of Milwaukee.

Before Wedemeyer, P.J., Schudson and Curley, JJ.

¶ 1. SCHUDSON, J.

Retired City of Milwaukee firefighters James A. Rehrauer, James D. Prestidge, Glenn W. Schneeberg, Roger L. O'Brien, and Glen A. Dickau1 (collectively, "the firefighters") appeal from the circuit court's grant of summary judgment to the City of Milwaukee and Milwaukee Employes' Retirement System Annuity and Pension Board (collectively, "the City"). They contend that the court erred in concluding that: (1) their vested rights in their Duty Disability Retirement Allowances ("DDRA," or "duty disability benefits") were limited to those contractually in place at the time the City of Milwaukee hired them; and (2) the doctrine of issue preclusion foreclosed their action. Because we conclude that the firefighters acquired vested rights in the duty disability benefits that came to be contractually established during the course of their employment, we reverse.

I. BACKGROUND

¶ 2. The firefighters began their employment with the City of Milwaukee prior to February 8, 1972, and they received duty disability benefits at various times after September 30, 1977.2 Consequently, the City granted them the limited-term duty disability benefits provided under the contracts that had been in effect at the time they were hired, but denied them the lifetime duty disability benefits that had been established under the subsequent contract in effect for firefighters from February 8, 1972, through September 30, 1977. The firefighters describe the practical impact of tying the benefits to the time of hire:

Not all disabled police and firefighters lost out on DDRA as a consequence of the City's position, but its interpretation led to the following anomalous results. Those workers who had been hired prior to the lifetime disability contract and had applied for disability before it had ended received lifetime DDRA. Those who had been hired during the period of the lifetime disability contract and had applied for disability after it had ended also received lifetime DDRA. Only those who had been hired prior to the start of that contract but had not applied for disability until after it had ended suffered a diminution of the promised lifetime DDRA benefit. (Also, no disabled police or firefighters hired after the end of the lifetime disability contract were adversely affected, since, thereafter, whenever DDRA entitlements were changed, they invariably were lowered. The 1972 increase in such benefits was unique.)

¶ 3. Thus, in October 1998, the firefighters and the widow of one of their peers, among others, initiated the underlying action seeking declaratory relief.3 In the circuit court, the parties stipulated that, with respect to their cross-motions for summary judgment, the issues of law were identical to those presented to the same branch of the circuit court in DeBraska v. City of Milwaukee, Milwaukee County Circuit Court Case No. 98-CV-006533. They agreed that the only difference between the two cases was that the plaintiffs in DeBraska were retired police officers rather than retired firefighters. Additionally, the parties stipulated to the disposition of the case on cross-motions for summary judgment based on: (1) a table listing the plaintiffs and their respective dates of birth, hire, and duty disability retirement; the highest conversion age in effect during their employment; and the dates of conversion to service retirement; and (2) the circuit court filings, both in support of and in opposition to the motions and cross-motions for summary judgment, in DeBraska.

¶ 4. Adopting its oral decision in DeBraska as dispositive of the cross-motions for summary judgment in the firefighters' case, the circuit court granted summary judgment to the City. Relying on Welter v. City of Milwaukee, 214 Wis. 2d 485, 571 N.W.2d 459 (Ct. App. 1997), the circuit court concluded that "the plaintiffs have contractual and vested rights to the mandatory conversion age in effect on the date of their hire or at the date of the grant of a duty disability retirement allowance, whichever is a higher conversion age."

¶ 5. The firefighters contend that the circuit court erred. They maintain that they gained vested contractual rights to receive lifetime duty disability benefits, through the contract in effect from February 8, 1972, through September 30, 1977, and that their claim should not be foreclosed by the doctrine of issue preclusion or by "an erroneous legal conclusion that post-hiring benefits are irrelevant." The firefighters are correct.

II. DISCUSSION

[1, 2]

¶ 6. As we have explained, summary judgment is appropriate to determine whether there are any material factual disputes, so that the parties and court may avoid a trial where there is nothing to try. Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 436, 531 N.W.2d 606 (Ct. App. 1995). While we apply the same methodology as the circuit court when reviewing summary judgment, id., and while we are assisted by the circuit court's analysis, Welter, 214 Wis. 2d at 489, our review is de novo, id. If we conclude that the circuit court granted summary judgment based on an incorrect legal determination, we will reverse its grant of summary judgment. Link v. Gen. Cas. Co. of Wis., 185 Wis. 2d 394, 398, 518 N.W.2d 261 (Ct. App. 1994).

¶ 7. The firefighters assert that the contract, in effect between their union and the City from February 8, 1972, through September 30, 1977, promised that any firefighter who became, and remained, disabled as a result of an on-duty injury would receive lifetime disability benefits, thus providing "greater rights with respect to disability pay than did the union contracts in place before or after." Thus, they argue, the circuit court erred in determining that "disabled City of Milwaukee employees need not be given the highest level of DDRA benefits in place during the terms of their employments because the only benefit levels that mattered to them were those that had induced them to sign on as City employees." They contend that the court's analysis is flawed and that its conclusion "flies in the face of common sense and contravenes a clear statement of the Wisconsin Legislature's understanding and intent."

¶ 8. In support of their argument, the firefighters point out that the legislature, after creating Milwaukee's Employes' Retirement System, see Laws of 1937, ch. 396, emphasized its intention to strengthen public service in the City of Milwaukee by "establishing the security" of the system's retirement and death benefits. The legislature declared:

LEGISLATIVE POLICY. Employes have been attracted to and have remained in the public service in cities of the first class despite the prevailing higher wages in other employments because of the deferred compensation for their services promised to them in the form of retirement annuities and death benefits in the retirement system to which they have been admitted as contributing members. The purpose of this act is to strengthen the public service in cities of the first class by establishing the security of such retirement and death benefits.

Laws of 1947, ch. 441, § 30(1) (emphasis added).

¶ 9. Moreover, and of particular significance to the instant case, the legislature sought to protect such benefits, once granted, from subsequent reduction. The legislature declared, in relevant part:

(2) CONTRACTS TO ASSURE BENEFITS. The benefits of members, whether employes in service or retired as beneficiaries, and of beneficiaries of deceased members in the retirement system created by chapter 396, laws of 1937, as amended, shall be assured by benefit contracts as herein provided:
(a) Every such member and beneficiary shall be deemed to have accepted the provisions of this act and shall thereby have a benefit contract in said retirement system of which he [or she] is such member or beneficiary as of the effective date of this act unless, within a period of 30 days thereafter, he [or she] files with the board administering the system a written notice electing that this act shall not apply to him [or her]. The annuities and all other benefits in the amounts and upon the terms and conditions and in all other respects as provided in the law under which the system was established as such law is amended and in effect on the effective date of this act shall be obligations of such benefit contract on the part of the city and of the board administering the system and each member and beneficiary having such a benefit contract shall have a vested right to such annuities and other benefits and they shall not be diminished or impaired by subsequent legislation or by any other means without his [or her] consent.

Laws of 1947, ch. 441, § 30(2)(a) (emphasis added).4 And, with specific reference to cities of the first class, the legislature continued:

For the purpose of giving to cities of the first class the largest
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