State ex rel. Neelen v. Lucas

• Citation: 128 N.W.2d 425,24 Wis.2d 262
• Parties: STATE ex rel. Harvey L. NEELEN et al., Respondents, v. Thomas J. LUCAS, Sr., et al., constituting the Board of Trustees of the Wisconsin Retirement Fund, et al., Appellants.
• Decision Date: 02 June 1964
• Court: United States State Supreme Court of Wisconsin

Page 425

128 N.W.2d 425

24 Wis.2d 262

STATE ex rel. Harvey L. NEELEN et al., Respondents, v. Thomas J. LUCAS, Sr., et al., constituting the Board of Trustees of the Wisconsin Retirement Fund, et al Appellants.

Supreme Court of Wisconsin.

June 2, 1964.

Maurice B. Pasch, Madison, for appellants.

Stewart G. Honeck, Milwaukee, for respondents.

FAIRCHILD, Justice.

The purpose of the Wisconsin Retirement Fund is to provide for the payment of annuities and other benefits to employees and beneficiaries of employees of the state and other units of government. ¹ A retirement annuity or other benefit is determined upon the basis of the total amount of credits to the particular employee. Credits arise from contributions which have been made pursuant to statute by the participating employee and also from amounts which his employer unit is obliged to fund by contributions. One type of credit provided by the employer unit is past service credit in those instances where the employee had been employed by the employer unit before coming under the plan.

The interest of an employee in having all credits to which he is entitled fully recognized is obvious.

Supreme court justices and circuit judges were first made eligible to participate as state employees on January 1, 1952. They were given prior service credit as of that date for state service prior thereto as supreme court justice or circuit judge. ²

The provision was amended in 1955 so as to include in such prior service credit service as a county judge. ³

In 1957, it was amended so as to include in such prior service credit service 'as full-time judge of a court of record, municipal or inferior.' ⁴

Petitioners are circuit judges in the second judicial circuit (Milwaukee county). Two of them had previously been judges of the civil court of Milwaukee county and one of them had been a judge of the district court of Milwaukee county. Thus each of petitioners had served as a 'full-time judge of a court of record, municipal or inferior.' By the terms of sec. 66.902(3)(n), Stats., as amended by ch. 379, Laws 1957, each was clearly entitled to past service credit in accordance with that statute.

The board, however, has refused to recognize their entitlement, pointing out that the two petitioners who had been judges of the civil court had participated during their service on that court in the retirement system for employees of Milwaukee county, and the petitioner who had been a judge of the district court had participated during his service on that court in the retirement system for employees of the city of Milwaukee. Those retirement systems are independent of the Wisconsin retirement fund. In general, the government units ('municipalities') which may participate as employers in the Wisconsin retirement fund include counties and cities, but Milwaukee county and the city of Milwaukee are not included. ⁵ The board considered that if petitioners' services on those courts were reflected in credits for them in the Wisconsin retirement fund as well as in the Milwaukee systems, a duplication would result which the board considered as a departure from precedent and as not having been contemplated by the legislature.

It is true that the board can point to facts indicating that those who formulated the provisions of ch. 379, Laws 1957, overlooked the possibility that there were circuit judges who had served as judges of municipal or inferior courts of record in Milwaukee county and to facts from which it could be inferred that had attention been called to this feature, the statute would have been drawn so as to exclude them. These facts are as follows:

1. The joint survey committee on retirement systems considered Bill No. 60, S., which became ch. 379, Laws 1957. Its report appeared in the Senate Journal on March 21, 1957. In analyzing the probable cost of the proposed additional past service credits, the report stated:

"It appears that only one person would be affected by this bill initially. This individual was a municipal judge for about 10 years up to 1952, and since then he has been a circuit judge. The cost to the state for prior service credits for the time served as a municipal judge by this individual would be $2,963.

"Additional costs could result if additional persons who had been judges of such courts prior to January 1, 1952, and had not previously received such credit subsequently became circuit judges or supreme court justices. It is impossible to estimate the cost of such potential credits."

The particular judge referred to was Judge Goodland of Racine county and Bill No. 60, S. had been introduced by the senator from that county. The report demonstrates that the committee was unaware that there were other circuit judges then in office to whom the terms of the bill as drawn would apply, and apparently it was a fact that there were no others outside of Milwaukee county. The report did recognize that other persons who had served as judges of municipal or inferior courts of record might later become circuit judges, and they would be entitled to past service credits under the bill.

2. After enactment of ch. 379, Laws of 1957, one or more of petitioners asserted claims under it. Bill No. 654, S., 1957 session, was then introduced by the committee on legislative procedure, considered by the joint survey committee, and passed by each house by unanimous vote of those present and voting. The bill would have excluded from prior service credit as of January 1, 1952, 'service for which retirement credits have been earned or granted under a public retirement system other than the Wisconsin retirement fund.' The report of the joint survey committee pointed out that it had been 'recently discovered that the prior service credit provisions of the Wisconsin Retirement Fund could conceivably be construed to grant such credits with respect to service covered by other systems.' The committee recommended passage, and said: 'It is very clear that duplication of coverage which might be possible under a conceivable construction of these provisions, was never intended in connection with the granting of prior service to judges.'

The bill received a 'pocket veto.' The then governor neither signed nor returned the bill, but since the legislature prevented its return by adjournment, it did not become law.

Ch. 379, Laws of 1957, grants certain prior service credit as of January 1, 1952, to a circuit judge for service as full-time judge of a court of record, municipal or inferior. Each of petitioners fits its terms.

A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses. ⁶ There is no ambiguity in the literal terms of the provision under consideration and it is often said that when the words are plain there is no room for judicial construction. ⁷

A court may also enlarge or restrict in meaning some of the words of a statute in order to harmonize them with the manifest legislative intent of the entire statute. ⁸

An obscurity of meaning may also exist, and call for judicial construction where the literal sense of the statutory language would work an absurd result. ⁹

Primarily, however, the meaning must be read from the language chosen by the legislature, and the courts are not free to determine whether different provisions would have been enacted if the legislators had...