Welter v. City of Milwaukee

Decision Date30 July 1947
Citation214 Wis.2d 485,571 N.W.2d 459
PartiesWilliam W. WELTER, individually, and as representative of a Class consisting of all City of Milwaukee Police Officers hired on or after
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of Grant F. Langley, City Attorney, and Thomas E. Hayes, Special Deputy City Attorney, of Milwaukee.

On behalf of the plaintiff-respondent and the intervenors-plaintiffs-respondents, the cause was submitted on the brief of John F. Fuchs and Marcia A. Snow of Fuchs, Snow, O'Connell & DeStefanis, S.C., of Milwaukee.


FINE, Judge.

The City of Milwaukee appeals from the trial court's entry of summary judgment declaring that: 1) the City may not reduce below the conversion-age in effect when he or she was hired the age at which a police officer receiving a Duty Disability Retirement Allowance is converted to a less-favorable Service Retirement Allowance, and 2) officers who received pension installments based on the less-favorable Service Retirement Allowance even though they were entitled to a Duty Disability Retirement Allowance have six years within which to seek the difference with respect to each installment for which they were short-changed. We affirm.


Since 1947, police officers employed by the City of Milwaukee have been members of an employee retirement system that provides payments to officers who are either retired or who have suffered injuries in the course of their employment that render them disabled. Officers who are disabled in the course of duty receive a Duty Disability Retirement Allowance. Officers who retire without disability receive a less-favorable Service Retirement Allowance. With the exception of a period when disabled officers were entitled to receive their Duty Disability Retirement Allowance for the duration of their disability for life, officers receiving a Duty Disability Retirement Allowance have been converted to the Service Retirement Allowance when they reach a certain age. This conversion age fluctuated over the years. At times, the City and the unions representing the officers agreed to lower the conversion age. 1 At other times, arbitration awards following impasses in the collective-bargaining process permitted the City to lower the conversion age.

This is a declaratory-judgment action brought by Milwaukee police officers who were eligible for a Duty Disability Retirement Allowance but whose benefits were converted to the Service Retirement Allowance plan at an age lower than the conversion-age in effect when they were hired as police officers and thus became members of the employee retirement system. As noted, the Duty Disability Retirement Allowance is worth more than the Service Retirement Allowance, and these officers receive less money than they would if their benefits were not converted at the earlier age. They contend that their conversion-age rights were vested when they were first hired by the City and became members of the retirement system. The trial court agreed. So do we. They also contend that a six-year statute of limitations applies to their right to recoup underpayments with respect to each installment. Again, the trial court agreed, and so do we.


The case was presented to the trial court on cross motions for summary judgment on stipulated facts. Although we have been assisted by the trial court's well-reasoned written opinion, our review is de novo. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987).

A. Vested Rights.

Since 1947, Wisconsin law has provided that "annuities and all other benefits" for Milwaukee police officers under their "retirement system" benefit contract "shall be obligations" of "the city and of the board administering the system and each member and beneficiary having such a [retirement system] 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 other means without [the officer's] consent." Laws of 1947, ch. 441, § 30(2). 2 Moreover, although the City could, under its home rule powers, modify by amending or altering some aspects of the retirement system, it could not "modify the annuities, benefits or other rights of any persons who are members of the [retirement] system prior to the effective date of such amendment or alteration." Laws of 1947, ch. 441, § 31. 3 Each of the affected officers who are plaintiffs in this case received "benefit contracts" that conformed with these provisions.

Sections 30(2) and 31 of Chapter 441 of the Laws of 1947 are not ambiguous; their meaning is plain. Accordingly, we apply them as written. See DNR v. Wisconsin Power & Light Co., 108 Wis.2d 403, 408, 321 N.W.2d 286, 288 (1982). Under §§ 30(2) and 31, retirement-plan benefits in effect when a Milwaukee police officer becomes a member of the retirement system are vested as to that officer unless the officer agrees to a change. Although the City does not contend that any of the affected plaintiffs consented to a change in their benefits, it argues that it can, nevertheless, reduce those benefits from what the benefits were when the plaintiffs became members of the retirement system. We discuss the City's contentions in their logical order.

1. The City argues that insofar as the 1947 legislation restricts the City from modifying retirement-system benefits, it is an unconstitutional usurpation of the City's home-rule powers granted by Article XI, § 3(1) of the Wisconsin Constitution. Article XI, § 3(1) provides:

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.

Under this provision, "a municipality's ability to regulate matters of statewide concern is limited." DeRosso Landfill Co., Inc. v. City of Oak Creek, 200 Wis.2d 642, 651, 547 N.W.2d 770, 773 (1996). Thus, " 'municipalities may enact ordinances in the same field and on the same subject covered by state legislation where such ordinances do not conflict with, but rather complement, the state legislation.' " Ibid. (Quoted source omitted.)

A municipal ordinance is preempted [by a statute] if (1) the legislature has expressly withdrawn the power of municipalities to act; (2) it logically conflicts with state legislation; (3) it defeats the purpose of state legislation; or (4) it violates the spirit of state legislation. Should any one of these tests be met, the municipal ordinance is void.

Id., 200 Wis.2d at 651-652, 547 N.W.2d at 773. (Footnotes omitted.)

Crime crosses municipal boundaries. Effective local law enforcement and ensuring that local governments attract to their law-enforcement agencies men and women of the highest caliber is a matter of statewide concern. Local Union No. 487 v. City of Eau Claire, 147 Wis.2d 519, 529-530, 433 N.W.2d 578, 582 (1989) ("[T]he need to have an efficient, dependable police force functioning in all parts of the state [i]s a matter of statewide concern."); Van Gilder v. City of Madison, 222 Wis. 58, 75, 83, 267 N.W. 25, 31-32, 35 (1936) (regulation of police officer salaries a matter of statewide concern); id., 222 Wis. at 89, 268 N.W. at 111 (matter of statewide concern "to see that an efficient, dependable police force is functioning in all parts of the state") (per curiam on motion for reconsideration). Assuring prospective law-enforcement employees that their duty disability benefits will not be changed without their consent helps attract qualified applicants and is thus an important component of legitimate state policy. 4

"All legislative acts are presumed constitutional and every presumption must be indulged to uphold the law if at all possible. The party challenging the constitutionality of a statute has the burden to prove that the statute is unconstitutional beyond a reasonable doubt." Norquist v. Zeuske, 211 Wis.2d 241, 250, 564 N.W.2d 748, 752 (1997) (Internal citation omitted.). Given the clear statewide concern "to have an efficient, dependable police force functioning" in Milwaukee as elsewhere, see Local Union No. 487, 147 Wis.2d at 529-530, 433 N.W.2d at 582, the argument that the legislature may not restrict the City's ability to reduce police-officer retirement-system benefits without the officers' consent below the level existing when the officers were hired fails. See Van Gilder, 222 Wis. at 84, 267 N.W. at 35-36 (invalidating ordinance that attempted to reduce police officer salaries contrary to statute). 5

2. The City argues that an officer's right to a disability pension does not vest until he or she becomes disabled, and cites case law from other jurisdictions in support of that proposition. This argument, however, ignores the legislative command that the critical date is not that of the duty-related disability but the date the officer becomes a member of the retirement system-- the date he or she was first employed by the City as a police officer. Sections 30(2) and 31 of Chapter 441 of the Laws of 1947. Unless a municipal enactment affects a matter...

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