*1 Lеnz, Peterson, Gregory Thomas H. Paul J. Barland, Wahl, Benjamin Proctor, and Eric Circuit Court County, for Eau Claire Judges Plaintiffs-Respondents,
v. County, Eau Claire Defendant-Co-Appellant, AFSCME Local Defendant-Appellant. Supreme Court 4, 1997. argument September No. 96-1607. Oral —Decided 13, 1998. March 691.) (Alsoreported in 575 N.W.2d *4 (in defendant-appellant there were briefs For the by Appeals) Bruce F. Ehlke and the Court of Myers, Dowling, Shneidman, Ehlke, Blumenfield, by argument Domer, Hawks and Madison and oral Bruce F. Ehlke. defendant-co-appellant
For the there were briefs (in Appeals) argument by the Court of and oral Keith R. Corporation Zehms, Counsel, Claire. Eau plaintiffs-respondents For the the cause was by attorney general, argued Rice, David C. (in Appeals) with whom on brief Court of was Doyle, attorney general. E. James (in Appeals) Amicus curiae brief Court of was by O'Neil, filed Thomas G. Cannon and Cannon & Holl- Judges man, S.C., for the Trial Milwaukee Wisconsin Association, Inc. (in Court) Supreme
Amicus curiae brief was Rosenbaum, filed Robert Horowitz and Stafford, Hansen, Rieser & Madison for the Wisconsin Counties Assocation. *5 WILCOX, 1. JON P. J. This case is not about explicitly
powers
that are
set forth or described
our
constitution, or even mentioned
our statutes.
"[fjrom
powers
Rather, it
that
time immemo-
is about
they are
rial. . .have been conceded to courts because
powers
courts. Such
have been conceded because with-
dignity,
they
out them
could neither maintain their
accomplish
purposes
business,
their
nor
the
of
transact
pow-
powers
called inherent
their existence. These
are
Cannon,
534, 536,
¶2. Indeed, the inherent of the courts as the "sword and shield of the have been referred to judiciary." Stumpf, Felix F. Inherent Powers Judiciary, National Courts: Sword and Shield of College Using protect these tools to its Judicial gov- independence third constitutional as a branch judiciary against to shield ernment, the should be able intrusions into its domain of exclusive ity, author- away using cut while its sword to legislative constitutionally portions defective of a Today must determine whether circuit enactment. we exclusive, inherent constitu- have authority prevent unilateral removal of
tional bargain- by way their assistants of a collective ing agreement county government and its between they employees. do. We hold This case is the court on certification before appeals, pursuant § to Wis. Stat. 809.61 the court (1995-96).1 granted plaintiff The circuit court (the summary judgment judges' judges) motion for Stats, to Wis. will be to the 1995-96 All future references unless otherwise indicated. version of the statutes exclusive, declared that a circuit court has appoint and remove its bargaining *6 regardless provisions of a collective county agreement negotiated and its between employees Municipal Employment Relations under the (MERA), §§ Stat. 111.70-111.77. Defendants Act (the County County) Local and AFSCME Eau Claire (AFSCME) appealed from the circuit court's deci- 2223 sion and order. certification, consider a cir- 4. On we whether authority judge exclusive, inherent
cuit court has judicial appoint assistant, her and remove his or to regardless provisions bargaining of a collective judge agreement. stated, As we hold that a circuit court authority exclusive, inherent constitutional to judicial prevent the unilateral removal of his or her bargaining despite a the terms of collective agreement. a circuit court However, we do not address judge's power appoint Therefore, to that assistant.2 we granting judges' the circuit court affirm the order of summary judgment on the basis that circuit motion authority judges exclusive, have the inherent to remove their assistants.3 2 core, requires whether At its this decision us to determine judges prevent circuit court can the removal of their appoint assistants. The to an assistant after one has been consideration, secondary is a and one that is not neces removed sarily by triggered typically the facts of this case. Because we possible grounds, State v. decide cases on the narrowest see (Ct. Blalock, 688, 703, 1989), App. 150 Wis. 2d N.W.2d 514 solely judge's power encompasses this decision a circuit court remove his or her assistant. case, Following argument in this AFSCME filed a oral seeking "Supplemental file motion with this court leave to a Followup Argument." to Oral That motion is Statement
l-H County ¶ 5. Five Eau Claire circuit court declaratory judgment pursuant filed a action to Wis. requesting § Stat. 806.044 the court declare that a authority exclusive, circuit court has the appoint judicial assistants, and remove its and that such cannot be modified collective bar- gaining agreement. findings
¶ 6. The circuit court made certain upon parties' pleadings, briefs, fact based and oral arguments, including following. County is a municipаl employer meaning within the of MERA. bargaining repre- AFSCME is the exclusive collective County sentative for the Eau Claire courthouse clerical employees bargaining unit. AFSCME and the *7 ("the parties bargaining agreement were to a collective agreement") period January 1, 1994, in force for the through bargaining 31, December 1995. Collective agreements covering employees courthouse have been hereby papers denied. Briefs addition to those discussed by very accepted in Wis. Stat. 809.19 are this court under § circumstances; typically only limited such action is allowed requested briefing particular when the court has additional on a consider, Accordingly, opinion issue. we do not nor does this address, any arguments of the additional that are set forth that statement. 4 (1) declaratory judgments § Uniform act. Wis. Stat. 806.04 respective jurisdictions shall SCOPE.Courts ofrecord within their status, rights, legal have to declare and other relations whether or not further relief is or could be claimed.... (2) CONSTRUE, deed, Any person interested under a POWERTO ETC. contract,
will, constituting writings written contract or other a or rights, legal by a stat- whose status or other relations are affected any validity .may question ute. . have determined ofconstruction or instrument, arising under the statute.. .and obtain a declaration of rights, legal status or other relations thereunder....
567 County See since 1972. in effect in Eau Claire 298, 2223, 190 Wis. 2d Local Eau Claire v. AFSCME 1994). (Ct. 301, 526 N.W.2d App. agreement provides
¶ that 4.02 of the 7. Section layoff, employee has the an affected in the event of a right seniority "bump" and move or his or her to invoke seniоrity by employee position with less held an into a bargaining provided unit, that the same within bumping employee "necessary qualifica-
possesses position. for that tions" County, judicial assistant In Eau Claire always posted
legal secretary5 been vacancies have agreement, pursuant filled terms of the to the through posting procedure.6 The last time that a county position in the was filled assistant years lay- July posting on 1981—14 before was off here. positions are five 9. There bargaining employees' clerical
within the courthouse positions provide assis- of those five clerical unit. Three Ms. Shanan Melland serves tance to the circuit court. bargaining agreement County collective The Eau Claire argument, "legal secretary." At oral counsel uses the term "judicial take the position as a assistant." We referred to 70.39(ll)(a) (1996) in SCR "judicial term assistant" as described "judi synonymous "legal secretary" and use the term with be throughout opinion except this in direct reference cial assistant" agreement. bargaining of this collective to the terms county stated that if no argument, At oral counsel for the *8 county person applied posted position, qualified policies position. to fill the would then use standard recruitment judge, event, appointing person, such as the would In that many applicants he or she wanted to con indicate how outside judges are involved in the sider. There is no evidence procedure posting the normal is appointment process when successful. judicial County
as the assistant to Eau Claire Circuit Judge family Cоurt Paul J. Lenz and to the court com- Although missioner/court commissioner. the three County assistants for the five Eau Claire cir- judges specific responsibilities, they will, cuit have if arises, the need assist one another their assignments. findings
¶ 10. The circuit court also made describing procedural history of this action. On County Supervisors 15, 1995, November Board of County adopted for Eau Claire Ordinance No. positions 95-96/237 which abolished certain effective January Penny Walske, 1996. Ms. a member of the bargaining position unit, courthouse clerical held a by that would be affected the new ordinance. On 30, 1995, Walske, November Ms. a more senior employee, bump posi- elected to Ms. Melland from her Judge tion as assistant Lenz. The circuit court found that Ms. Walske meets exceeds all the job qualifications required by agreement.7 County
¶ 11. The five Eau Claire circuit court judges expressed objection bumping their to the of Ms. Melland to the Board Committee on Personnel. claimed to have exclusive Walske, Specifically, found that circuit court Ms. position Register whose in the of Deeds Office had been elimi 95-96/237, possesses high nated Ordinance No. school diploma plus Degree, years an has over six secretarial Associate office, years working experience general in a with four of those legal secretary private Ms. as a for two different law offices. experience training typing, personal Walske also has software, processing bookkeeping computer use with word basic practices procedures, plus a demon and standard office ability confidentiality. strated to maintain *9 judicial appoint assistants, the their under and remove judicial authority separation and doctrines of inherent arguments, powers. Despite these the Committee on judges' arguments. rejected the Ms. Melland Personnel by County if the and AFSCME that notified both was position to her as she did not abandon report Judge of the and for work the Office Lenz might disciplined for Courts, she be insubordi- Clerk comply Further, to meant that Ms. nation. a failure County paid by the after Decem- Melland would not be 31,1995. ber judges 28, 1995, filed a 12. On December the they
complaint seeking a declaration that have authority judi- appoint remove their exclusive to and authority may assistants, not be cial and that such bargaining agreement. The a collective modified enjoining County judges requested also an order refusing pay bumping and from to from Ms. Melland 29, heard On the circuit court her. December temporary arguments parties and issued a enjoin County injunction and AFSCME from removing position Ms. Melland from her as Judge Then, 18, 1996, assistant to Lenz. on March summary judgment seeking judges filed a motion for enjoin declaratory permanent order to relief and a County bumping Ms. and AFSCME from Melland. May a declar- 1,1996, 13. On the court entered atory judgment that circuit court have authority judi- appoint their exclusive and remove cial assistants under the doctrines of inherent authority powers. separation The court held that and authority may by a collective bar- such not be modified gaining agreement negotiated between the and joint if AFSCME under MERA. Even there were appoint remove, the сircuit court con- trained, eluded that the deliberate removal of a compatible employee significantly trusted, would impair efficiency irreparably of the court and would *10 public. harm the circuit as well as the Having ¶ conclusions, 14. reached these the cir- enjoined permanently County cuit court the removing posi- AFSCME from Ms. Melland from her judicial Judge refusing Lenz, tion as assistant from pay disciplining remaining her, from her for position. County Thereafter, her the timely appealed and AFSCME from the decision and granted the order of circuit court. We the court of appeals' request for certification. ¶ 15. declaratory judgment action, this we
II. County's must decide whether the unilateral act to pursuant member, remove a staff albeit to the bargaining agreement, terms of a collective intrudes upon authority exclusive, inherent constitutional question impression the circuit court. This is a of first in the state of Wisconsin. rights A court's to declare is broad. Loy Bunderson, 400, 407,
See v. 107 Wis. 2d 320 (1982). A N.W.2d 175 circuit court has discretion to deny declaratory only grant relief, but when there is justiciable controversy. a case or See id. at 409-10. To discretionary act, sustain a must conclude that the we applied facts, circuit court examined the relevant proper a using law, and, standard of demonstrated process, rational reached a conclusion that a reasona- judge could reach. See id. at 414-15. Most ble importantly case, in this we determine whether müst applied proper the circuit court standard of law declaratory judges' request granting relief. by lеgislative govern branch of Whether an act separation doctrine ment violates infringing upon the inherent constitutional government question is a branch of independently courts. review lower law that we Holmes, 31, 41 n.7, 2d 315 N.W.2d See State v. 106 Wis. I—I that the 17. The and AFSCME contend constitutionally delegated power legislature to the bargaining agreement, County to enter into a collective constitutionally and that the circuit court is not agreement's empowered to avoid the effect of judges, "bumping" provision. hand, other on the *11 applied bumping provision contend that the is void as judges' power appoint assistants, since exclusive one. To and remove such assistants is an helpful conflicting to set claims, address these it will be regarding separation general principles forth some powers. of
A.
powers,
separation
¶
of
while
18. "The doctrine of
explicitly
constitution,
forth in the
is
not
set
Wisconsin
among
governmental powers
implicit in the
of
division
judicial, legislative and executive branches." State
County, 192
Friedrich v. Circuit Court Dane
ex rel.
(1995) (citation omitted).
1, 13,
Wis. 2d
572 stitution, and no to exercise the branch Holmes, to another." 106 committed constitution 42. Wis. 2d at attempting powers of 19. to delineate government, tripartite "strict, need not seek a
our we complete, absolute, of functions scientific division government. sepa- the three of The between branches principle shared, ration of doctrine states the of completely separated powers. rather than The doctrine sharing government separate branches envisions (citations omitted). powers." "In certain Id. at 43 these power,' government may one areas of'shared branch only on to an extent exercise conferred another unduly substantially that does not interfere burden power." In re the other branch's exercise of its with Grady, Complaint Against 762, 775, 348 118 Wis. 2d N.W.2d 559 majority governmental powers lie authority, "great of shared
within these borderlands" Appointment 592, 597, Revisor, Wis. In re (1910), possible prac- it is "neither nor N.W. 670 where exclusively categorize governmental action as tical to legislative, judicial." Friedrich, 192 Wis. executive or (citation omitted). "[e]ach Nevertheless, 2d at authority into has a core zone of exclusive branch may intrude." Id. at the other branches not which *12 (citation omitted). Although and restricted finite 13-14 authority "jealously size, in zones of are to be these core by government. guarded" Id. at each branch power, employ Therefore, areas of we do not as to these interference test the undue burden or substantial "any authority by another branch because exercise of
573 Grady, government In re 118 Wis. is unconstitutional." (citation omitted) original).8 (emphasis at 776 2d regard areas of exclusive 21. With authority, we have stated: century, called
For more than a
this court
been
govern-
attempts by
to resist
other branches of
upon
exclusively judicial
authority
ment to exercise
in an
attempt
These have included an
to remove
area.
Janitor,
a court
In re
35 Wis.
replace
employe,
(1874);
facili-
attempt
physical
410
an
to dictate the
was to exercise its
ties
which a court
functions,
Room,
(1912); an
In re Court
148
109Wis.
attempt
legislate
legal
what constitutes the
suffi-
evidence,
Chicago M. & St. P.R.
ciency of
Thoe v.
Co.,
(1923);
attempt
regulate
181
456
an
Wis.
business,
trials in the conduct of court
Rules of
Case,
(1931);
Court
B. legisla- 23. We examine first the extent of employment in the ture's constitutional provides staff The state constitution members. legislature may upon "[t]he confer the boards of supervisors of the several counties of the state such legislative powers local, char- of a and administrative they prescribe." time to time Wis. acter as Const, shall from § IV, 22. Pursuant to that constitutional art. delegated grant power, legislature certain statutory county, including powers to each other acts as are "make such contracts and to do such necessary proper the exercise of the and legal privileges granted performance legisla- charged upon § duties it." Wis. Stat. 59.01. delegated county supervisors also boards of ture has regulations employment to "establish treasury." any county person paid Stat. from the Wis. 59.22(2)(c).9 Finally, municipal employers § must bar- regarding collectively public employees gain with 59.22(2)(c) formerly designated as Wis. Wis. Stat. was § 59.15(2)(c). all sections of 1995 Wis. Act 201 renumbered Stat. § and the use the Chapter 59. The briefs of AFSCME statutory designations. 1993-94 employment.10 wages, terms of See hours and other 111.70(l)(a), 111.01(3), §§ 111.04, Stat. *14 111.70(l)(j). statutory provisions
¶ 24. set out the These County, leg- delegated broad as county regulate employment employees, islature, to including subject Moreover, staff. matter of court agreement seems to fall within the well boundaries authority: holidays, compensation, of this it covers brief, County objects to the circuit court's char its judicial employees, acterization of assistants as "confidential" 111.70(l)(i) employ because Wis. Stat. excludes confidential § (and status) protected municipal ees from the definition of a employee. Emрloyment The asserts that Wisconsin (WERC)requires employee Relations Commission that for an to confidential, to, be considered he or she must have access of, knowledge participate relating or in confidential matters to Further, confidential, for information to it labor relations. be employer's strategy position deal with the or in collective must administration, bargaining, litigation contract or other similar pertaining grievance handling matters to relations and labor bargaining representative employer, bétween the and the bargaining repre be information which is not available to the agents. County's judges sentative See 9. The or its brief at contend that the circuit court's use of this term is not meant to employees, fit the WERC of confidential definition but is com recognition judge mon sense of the fact that a circuit court entrusts his or her assistants with confidential informa judges' tion. See brief at 15-16 n.2.
We likewise do not read the circuit court's "confidential" characterization of assistants to mean that those staff have, persons example, strategy employer's for access to the bargaining grievance handling. collective circuit court parties bargaining agreement. are not to the collective Instead, we read the circuit court's use ofthe term "confidential" courts, knowledge to refer to of the substantive business of the knowledge strategies. and not to a of labor relations types pregnancy leave, and various vacation, insurance.
C. time, it is clear that circuit At the same authority over matters constitutiоnal courts also have legislature administration. The of staff and appointment delegated powers the circuit some appoint reporters court, such as the § Other See Stat. 751.02. of court. Wis. each branch delegated appointment include Wis. Stat. juvenile appointment § clerk of court for 48.04, of a juvenile appointment § 48.065, matters, Stat. § 851.71, commissioners, Stat. and Wis. court appoint register probate. also, Wis. See and remove a *15 32.08(2) county (power appoint § condemnation to Stat. 17.13(3) officers); (power § remove local to Wis. Stat. officers). government and AFSCME Both the point § each also authorizes that Stat. 751.02 out Wis. judge appeals justice supreme court of and secretary prescribe appoint and a and the duties of a statutory is, however, clerk. There no similar law judge appoint authority a a circuit court secretary. County and take the However, do not we only seriously that courts can contend
AFSCME authority of staff and over matters have delegation. legislative by virtue administration authority non-delegated mat- Examples over such appellate recognized in numerous ters have been authority staff in matters of Circuit court decisions.11 11 1, 7, Co., 2d See, 138 Wis. Rupert v. Home Mut. Ins. e.g., 1987) (Ct. (concluding circuit court App. 661 405 N.W.2d
577
administration
emanates
not from an
express grant of constitutional
but is an inher
power,
ent authority
derived from the
in sec.
powers granted
Inherent,
Art. VII of the Wisconsin Constitution.12
implied,
incidental
are those
powers
which must
necessarily be invoked to enable the courts to accоm
their
plish
constitutionally
or legislatively mandated
functions.
Friedrich,
See
the court's are those that arise out of necessary carry authority expressly granted and are to out the and contemplated constitutionally legislatively. either or (citation omitted). Id. at 5 We have little concluding trouble powers, that most just implied powers, inherent as ultimately find provisions VII, their roots in constitutional such as art. 2.§
578 catalog need not cоmprehensively 27. We case, of this For purposes to courts. granted powers inherent of power need determine whether only we to enforce- prevent includes the power the circuit court against the bumping provision ment of to circuit court judges. assistants include those powers powers 28. Inherent and con- proper to the expedition are "essential which In re Janitor of business." ducting (1874). have also Court, 35 Wis. 410, 419 We Supreme stated: authorities, any found on the in so far as can be
The court are to the effect that constitutional subject, power protect inherent general jurisdiction has unreasonably any action that would against itself efficiency. materially impair its powers its curtail attempt to even county A has no board court, such such a and no the functions of impede upon it. could be conferred 490 Room, 148 109, 121, 134 N.W. In re Court & King Corp., 23 v. Casey in Latham Later, (1964), 225 this 311, 314, 127 N.W.2d 2dWis. further stated: judicial business before control of the general if it function. the court is to court] is essential to
[the
in its
power, exercisable
'Every court has inherent
discretion,
the Constitu-
consistent within
sound
of causes on
statutes,
disposition
control
tion
economy
time and effort.'
its docket with
171,
Powers
Am.Jur., Courts,
Inherent
p.
sec.
Courts,
Suppl., p.
constitutionally-
asserts
AFSCME
¶29.
only,
"need specific"
are
grounded
*17
prerogative
may
not a
ing
be exercised at will. Accord-
County,
to the
the circuit court's need remains
replaced by qualified
if
filled Ms. Melland is
member
bargaining
employee
unit. This instance of
sub-
stitution is in contrast to the need for a new circuit
position,
provide
court staff
or the need to
the circuit
judges
equipment
with additional facilities,
or
services.14 Because this is
need,
not a case of
contends that
cannot invoke
their inherent
to avoid the terms of the col-
bargaining agreement.
lective
disagree
appellants'
argu-
30. We
with the
recognize
ments. We
the distinction between this case
involving
and cases
the need for additional facilities or
reject
implication
staff,
additional
but we
that a
powers may
only
court's inherent
be asserted
under
may
such circumstances. The courts of this state
call
upon
powers
protect
their inherent
when needed to
14See, e.g.,
Dep't Admin.,
State ex rel. Moran v.
103 Wis.
of
(1981)
311,
2d
(expenditure
The circuit court recognized below that there are several functional areas to which powers apply. Decision and at 4. of logistical Order One those areas is support, which circuit court the ordering described as personnel, additional mandating facilities, the construction of court procurement services, acquisition equipment, setting or the of sala- Id. ries. For an overview commentary of cases and discussing logistical support, Stumpf, see Felix F. Inherent Powers Court, seq., 47 et Collegе National Judicial "unreasonably against actions that would themselves impair materially [their] [their] effi- curtail *18 conducting judicial ciency" expediting and their Therefore, at Room, In 148 Wis. 121. business. re Court disagree County's suggestion the cir- we with necessarily fulfilled when cuit court's "need" has been judicial "bumps" the is a who incumbent bargaining qualified unit. of the member unilaterally ¶ fact, branch when another already qualified replaces and an trained and removes employee, only the court forced not to lose court is developed by employee, but efficiencies the incumbent orienting training spend to valuable time replacement employee. positive, productive A the working overnight.
relationship The is not established by training spent replacement on the the court time given pressing judicial member could be to other staff responsibilities. argues
¶ also that the exercise 32. AFSCME authority to those instances where inherent is limited capacity. judge Accord- acts in a a circuit judge ing an a circuit court makes AFSCME, to when appointment administrative, not decision, it exercises judicial, powers. this AFSCME for 33. The authorities cited persuasive.
proposition cases15 In none of those are not inher- the distinctions between the courts discuss did 175, Doyle, ex Drake v. 40 Wis. 15 AFSCME State rel. cites (1876) Thorne, 112 Wis. 87-88 ex rel. Ellis v. and State (1901) argument. judicial/administrative distinction for its judges could other than persons Ellis on whether focus in was power. Drake addressed whether exercise certain to certain state, empowered by statute revoke secretary of judicial act when unconstitutionally a licenses, performed revoking such licenses. powers judiciary
exit constitutional
and the
legislature's
delegate
constitutional
to
employment
upon
decisions to counties. Other cases
distinguishable,
which AFSCME relies are also
they
employment
because
assess whether certain
deci-
byjudges
sufficiently "judicial" qualify
sions
were
immunity
prosecution.16
from
request
distinguish
34. AFSCME's
that we
"judicial" power
between
ity
and "administrative" author-
identify
power
in order to
a court's inherent
misses
point. Contrary
to AFSCME's assertion, a court's
deciding
are not limited to
outcomes
particular
beyond
in
power
cases. "Judicial
extends
adjudicate
particular
controversy
encompasses
regulate
matters related to
*19
adjudication." Holmes,
¶ obligation 35. The constitutional to administer justice addressing includes court administration issues frequently employ- which arise "offthe bench." Judicial play extremely ees important can and often do an role discharge duty of a court's constitutional to justice deliver to the citizens of the state. appellate
¶ long recognized 36. Our courts have responsibility the inherent constitutional of the circuit employ courts to efficient and effective off-the-bench judicial management techniques. delivery jus- requires presiding tice much more than over cases and announcing Judges decisions. and their staff also serve as performing courtroom and calendar administrators,
16 See,e.g.,
(7th
Krajewski,
Kurowski v.
Cir.),
582 designed carry myriad to out constitution- tasks all ally responsibilities. required A circuit court power, necessarily from derived the con- has inherent protect and to control the stitution, to itself that "administra- it, business includes business before 240, Avestruz, v. 81 Wis. 2d tasks. See Jacobson tive" Young, also, 267 See Lentz 245, 260 v. N.W.2d (Ct. 1995). App. 451 457, Wis. 2d 536 195 N.W.2d support for from a 37. draw this conclusion We examples the exercise of a circuit court's number of non-adjudicative power in matters. In Steven- inherent County, 14, 19, v. 140 121 N.W. son Milwaukee (1909), example, circuit we held that a appoint bailiff, to its own notwith- standing restricting appointment to a statute example is the sheriff. Another candidates selected Reynolds County v. Court ex rel. our conclusion State County, 560, 2d Kenosha 11 Wis. N.W.2d (1960), efficiently need function the court's an to order installation of included the inherent air conditioner. have sum, are satisfied that courts we perform their
inherent constitutional
subject
responsibilities.
result, the
As a
administrative
judici-
agreement also falls within the
matter of the
constitutionally-based sphere
powers
ary's
of inherent
against any
"protect
that would unrea-
itself
action
materially
sonably
impair
its
its
curtail
efficiency,"
Room,
at
and to
In re
148 Wis.
Court
*20
expe-
are "essential
exercise those
which
conducting
proper
re
business,” In
of
dition and
Janitor,
rv.
legislative
judi-
However,
that both power
cial branches exercise
in the realm of staff and
necessarily
administration does not
lead to the
power.
conclusion that the two branches share this
See
example,
bumping
Friedrich,
to establish employment persons paid county from the trea- 59.22(2)(c). sury. § See examining Wis. Stat. However, general powers legislature provides such impre- of the guidance cise in this case.
¶ 40. We reach this conclusion because in our "bumping" assessment, or removal of a power wholly is a distinct from the regulations employment." "establish establishing regulations employment, agreement certain sets guidelines working forth on conditions such as leaves of (see agreement), § absence pregnancy 6.07 of the leave (see (see 6.12), (see 7.09), § 7.10), § vacation § sick leave (see 7.05-.07) health, §§ life and dental insurance (see 7.11). compensation injury worker's § leave provisions regulate employment county These personnel, but do not control or commandeer it as bumping provision agreement does. We are satis- bumping provision fied step that the takes a down unexplored path bargaining heretofore in collective *21 doing relating so, negotiations staff, and in private judiciary's abode.17 the threshold of crosses regu- establishing The distinction between 41. making employment the ultimate and lations of employee hired is made clear once to retain an decision by Bar Association The American authorities. several in thе promulgated for courts certain standards organization. Standards Relat- See ABA area of court 1.42.5(a), Organization § ing Collective to Court (1990). Nonjudicial Bargaining These Personnel for scope "[t]he bar- of collective indicate that standards gaining concerning those matters limited to should be working compensation, conditions, related sub- public applying by jects permitted state law including Id. employees, branch." those in University study Criminal the American A done similarly Project indicates Technical Assistance Courts "[ujnions wages, strength bargain hours on employment. The courts and conditions and terms right management's administer, disci- hire, retain pline, Harry employees." Lawson, O. their and remove in the Courts al., Personnel Administration et Stumpf the Courts Powers Inherent See also ("Generally, line cases cited therein at 54-55 and litigation bargaining drawn in collective that has been designated judiciary as the not when is whether managerial representative control has retained discharging selecting, supervising, personnel."). that the unilateral Therefore, conclude we judge's assistant a circuit court
removal of synonymous judge permission is not from the without argument at oral fact, conceded counsel for the had been judicial time that a the first that this was agreement. bargaining a collective bumped under logical "establishing] reg- with, or even a of, extension employment." agree Thus, ulations of legislature while we that the *22 constitutionally-based authority reg-
has
to
county employment,
ulate the conditions of
this fact
analysis
does not aid in our
of whether it has ever
power
shared the
to
remove
assistant without
judge's permission.
the circuit court
Therefore, we look
practices
to the historical
and laws of this state to
power
determine whether the
to remove a
legislature
is
shared with the
or exclusive to
judiciary.
the
Friedrich,
See
¶ regu- 43. The to control and county personnel significant history late have in the state of Wisconsin. 1945, Since Wisconsin counties ability regula- have had the to establish "rules and 59.15(2)(c) county employment. § tions" of Wis. Stat. (1945) provided: county
The board. .may provide, . fix change or salary compensation or any.. .employe.. .and also establish the employes number of in any depart- ment or may office. . .and establish rules and regulations employment any or all persons paid from the county treasury.. . . provided 44. date, Prior to that statute that the any change
board could "at
time fix or
the number of
deputies,
may
appointed
clerks and assistants that
be
by any county
change
officer, and fix or
the annual
694(4)(b)
salary
appointee."
of each
§
such
Wis. Stat.
(1915)
added).
(emphasis
phrase "county
The
officer"
"any
was defined and clarified in 1929 to include
elec-
salary
compensation
paid
tive
whose
is
officer
part
county treasury.
whole or in
out of the
..." See
1929 Wis. Laws Ch. 362. This definition would have
county
judges prior
included both
and circuit
to the
they
typically
reorganization
since
were
treasury.18
county
part,
paid,
out
least in
at
analysis
By engaging
in the historical
employed
that there is no
Freidrich, it
clear
becomes
power
legislature
has ever held the
that the
evidence
unilaterally
assistant without
remove a
contrary,
history
authority.
judge's
To the
rely
upon
and AFSCME
which
statutes
suggests
only
historically
legislature
had
that the
and salaries of
set the number
the limited
regu-
secondary powers
along
assistants,
other
with
employment.
to remove such assistants
late
judge
appeared
alone,
so
to rest in the hands of
employment,
regulate
again,
legislature could
once
altogether.19
employment decision
not control the
but
*23
analysis
that we
is similar
to
46. This
employed
Senate,
ex rel. Fiedler v. Wisconsin
in State
(1990),
this
99,
770
where
155
2d
454 N.W.2d
Wis.
imposing
legislative
that a
enactment
court concluded
attorneys
continuing legal
requirement on
education
a
guardians
appointment
prior
litem
ad
their
as
to
practice
regulation
upon
improperly
a
of the
intruded
18
removal,
it
of
is silent on the issue
Although this statute
the
and "if the court or
power
appointment,
of
does address
the
they
latter,
that
alone can exercise
possess the
it follows
justices
Court, Supreme
410, 417
the
In re Janitor
the
former."
simultaneously
pro
agreement
recognize
that
the
We
status,
also
employment
but
public
judicial
a
assistant's
tects
Therefore, we ref
susceptible
bumping.
to
employee
makes the
only
it
insofar as
employment
decision"
"control over the
erence
retaining
particular
a
judge's personal
choice
relates
to the
assistant;
suggest
do not
we
as his or her
individual
terminate
the assistant
judge may subsequently
circuit court
a
entirely.
public employment
from
exclusively
province
of law that is
within the
judiciary. See id. at 98. As a result of
intrusion,
this
we
held that the statute was void as an unconstitutional
separation
violation of the
doctrine.
id.
See
judi-
¶ 47.
In Fiedler, we first concluded that the
ciary
qualifications
attorneys
is concerned
with
regulate
in the exercise of its inherent
to
the bar.
Fiedler,
See
¶48.
determined that
court has
past
legislature
adopt
never
authorized the
to
legislation attempting
rules or enact
establish
competency
practice
particular
threshold level of
in a
attorney
area," we concluded that "once an
has been
legislative
determined to
met
have
requirements
practice
threshold
and is admitted to
subject
judiciary's
law, he or she is
to the
inherent and
regulate
practice
exclusive
of law."
Fiedler,
¶ 49. In the same we conclude that to remove a assistant falls not within an powers, area of shared but within an area that histori- cally belonged exclusively judiciary. to the *24 legislature employee has set limits on hours and wages, compensation levels, set and has even estab- posting procedure appointment judicial lished a positions,20 county employee assistant but once a 20 again, Once presence posting procedures the in the Eаu County system Claire is purposes opinion. irrelevant for of this
588
position
appointed
assistant, the
to the
been
enjoyed
legislature
the
has,
now,
until
never
judge's permission.
without the
remove that assistant
contrary, history
that
assist-
illustrates
To the
judiciary's
traditionally
subject to the
been
ants have
appointed.21
once
exclusive
left
an action that lies
50. Because we are
with
judiciary's
sphere
wholly
of exclusive
the
within
bumping provision
power,22
is
that
we conclude
vacancy
only when a
occurs in the
position
posted
A
is
judge's power
a
to remove
position, and does not affect
vacancy.
no
express
no
We
her assistant when there is
his or
constitutionality
posting procedures
opinion on the
County.
by the
previously been utilized
have
21
recently
that we
analysis
no different from
This
is
Administration, 216 Wis.
Flynn Department
v.
employed in
544-52,
concluding that
520,
245
After
2d
576 N.W.2d
fell within both
subject
1993 Wis. Act
9253
§
matter of
constitutionally-granted
judiciary's
legislature's
546-52,
concluded that
authority, 216 Wis. 2d at
we
zones of
judiciary's
not be within
subject matter of the statute could
the circum
authority. Id at 551. Under
exclusive
core zone of
legislature
that the
had
Flynn, it was clear
presented stances
allocating
consistently
appropriations
in the area of
acted
as to
legislative in nature
power so
government resources —a
exclusive
any
judiciary's
question that
eliminate
might be involved.
22
expressed
have
noting that other authorities
It is worth
See,
power.
removal
nature of the court's
opinions on the
similar
Winnebago County Courthouse
Winnebago County v.
e.g.,
n.4, 540
733, 741,
204
Ass'n,
N.W.2d
196 Wis. 2d
Employees
(decision
(Ct.
1995)
infringе upon the
App.
"does not
staff'; "The
her
appoint or remove his or
power of a court to
staff is not
from his or her
right to remove members
court's
WERC,
County v.
bargaining."); Kewaunee
subject to collective
(Ct.
1987) (”[A]ny
347, 358,
App.
V.
Having
¶ 51.
reached the conclusion that
bumping provision
agreement
impermissibly
of the
upon
judiciary's
intrudes
core zone of exclusive
authority,
important
it is
to set forth the foundation
upon
exclusive,
which the
to remove
Early
history
one's
rests.
in the
this state we considered the invocation of inherent
abrupt
employee
after the
removal of a court
county
hampers
operation
court in its
or interferes
void.");
with its constitutional functions would be
ABA Stan-
Relating
Organization,
dards
to Court
Non-Judicial Personnel
1.42(b)(iii) ("Confidential
System,
Court
employees include
§
persons
secretaries
law clerks and other
whose duties
require
personal
them to work on a
and confidential basis with
individual
appointment
officers. . . .their
may
pleasure
tenure
be at the
person
they
for whom
work.")
(1990) ("Confidential
added),
(emphasis
per-
cmt. at 99
sonnel, including secretaries and law clerks.
. .should be
selected and retained at the choice of the individual for whom
functions.")
added).
they perform their confidential
(emphasis
Janitor,
In re
¶ of the 52. until the unilateral action always supreme janitor intendent, the had been justices, "by and under their direc- removed the approval." Id. at 411. tion and with their consent and opinion Moreover, demonstrated that the the court's very working justices developed positive rela- had a they tionship janitor, depended on with the and that necessary perform many See id. at him to functions. Citing rea- customs, these the Janitor court 412-16. . that "no should be ordered. .without soned removal justices." approbation Id. 416. the advice and of the at reasoning, Following the court first 53. this statutory superintendent's support the considered pro- power janitor. statutes to remove a One of those superintendent authorized "to vided that the was capitol employ and such workmen and about necessary keep public grounds may the same in as be prоper Janitor, In re 35 Wis. a state of cleanliness...." concluding that the statute did not at 419-20. After superintendent powers give asserted, id. at see the division of 420-21, the court considered government: the three branches of between legislative power judicial a and not executive or As nature, lodged in co-ordinate branch in its and one separated independent and its government of the branches, it seems to of action from the other sphere constitution, protection be under and power therefore a which cannot be taken from the court, given legisla- to either the executive or departments.... tive
Id.
419. From this
the court concluded
reasoning,
at
to remove a court assistant was exclu-
power
to the
and declared the
judiciary,
superintendent's
sive
order of
void. See id. at 421.23
removal
sum,
the Janitor
court held that
to remove a court assistant was exclusive to the
custom,
based in
on
and in
judiciary
part
part on the
nature of the
between the
relationship
justices
their
In the
janitor.
way,
same
we conclude that
exclusive,
of a circuit court
judge
*27
his
her judicial
remove
from his-
springs
custom,
torical
as well as the unique relationship
judges
between
and their immediate assistants.
23
engage
note that the
did
We
Janitor court
not
a mod
ern-day separation
powers analysis
to reach this conclusion.
However,
only
highlight
age
this is relevant
of the deci
Although
proclamation
sion.
it is not the most recent
of law that
seen, In
this court has
re Janitor is still considered one of this
exclusive,
preeminent
involving
pow
state's
сases
inherent
judiciary,
routinely
ers of the
and has been
cited and discussed
See,
involving
powers.
e.g.,
in our decisions
State exrel.
1, 16-17
County,
Friedrich v. Circuit Court Dane
192Wis. 2d
for
n.7,
(1995);
the possessed that branch has ever to remove assistants with- judge's permission. contrary, out the To the Janitor strongly supports the conclusion that circuit court protect have exclusive their assistants by government. from removal another branch of At the unique relationship time, same we conclude that a judge exists between a and his or her assistant. Judges share their and confidences their labors with rely upon experience assistants, their assistants' managing increasingly complex caseload, an highly entrust sensitive matters to their assistants' good judgment. As the Janitor court observed: "This every principle pervading of trust and confidence department public private, life, of active both recognizes upon law also and acts and will enforce and protect." 35 at 415. integral played by judicial
¶ 56. The role staff in justice reflected in the overall administration of is also 70.39(ll)(a) (1996),24 Supreme Court Rule Wisconsin "[e]ach circuit court which recommends branch of should staffed one full-time assistant." be explains The Comment to the Rule the basis for that recommendation: system increasing
The trial court faces ever increasing complexity. caseloads and cases of ever *28 judge today charge aggressively The must take and manage judge his or her caseload. To do so the needs judicial position a full-time assistant. This staff will her permit judge each to devote more of his or 24 70, Chapter SCR entitled "Rules of Judicial Administra tion," governs court administration at the state and local levels. Note, Judicial Council Committee's judicial presiding over primary efforts to task — judging and lawsuits. position judicial assistant should be perform
the state service. It will for the court the following .;. assist with calendar man- type. work: .; scheduling conferences; assist agement. . hold . .maintain acquisitions;. with file and record library; judge's receptionist answering law act as telephone, handling processing visitors and mail;. by required . .such other work as the court. See, 758.19(h), Stats., sec. "The director of state description qualifica- a courts shall establish .a ..." tions and duties of.. assistant. experience expertise support Judicial long-standing position of the Wisconsin Judicial position Conference that this staff is vital to a well- functioning now court. Where assistants part staffing, of the court caseloads are exist as much more current and the oldest cases are dis- posed priority with consideration. right
The citizens of this state have a to com- directly judge's during each municate with office day get immediate answers normal work hours questions requests to their and service on their judge, waiting without for return calls from the reporters, or court clerk who at the time of the .Also, working call are in the courtroom. . . protected parte must be from ex communications by knowledge- having telephone their calls screened able staff.25 October, the director of state courts issued a
description which of the duties mirrors description in the position contained above Comment. That description qualifications, also contains a list of desired includ ability confidentiality, ing high an to maintain a level of integrity, ability clearly, discretion and an to communicate con- *29 unique relationship ¶ 57. Evidence of this can be statutory in mentioned, found as well. As each law justice appeals judge in and court of the state of Wis- "may appoint prescribe consin and the duties a secretary justice judge and a law clerk to assist the performance in the or her his duties." Wis. Stat. unique § 751.02. This statute also the reveals and con- relationship judge fidential that is inherent to a and Although legislature his or her assistant. the has cho- provide equivalent statutory authority sen not to ato judge, why circuit court we see no reason the relation- ship any is different at the circuit court level. protecting relationship
¶ 58. The reasons for this arguably stronger they are at the circuit court than are appellate at the level. Circuit court handle jury trials, numerous court and have dockets that are equally appellate if not more crowded than at the parties those level, and more have contact with the and the public general. strip- in circumstances, Under these ping judge prior a of his or her assistant without approval impair could the func- court's constitutional appellate tion than it more would at the level. County, Iowa 2d this court nearly present
faced a situation identical to the case. county argued judge's had that the circuit court statutory authority appoint register probate to a in county could be harmonized with a board's to working pursuant establish conditions to Wis. Stat. 59.15(2)(c), 59.22(2)(c), precursor §§ § to Wis. Stat. 111.70(l)(a). county Thus, and argued, See id. at 621. provision agreement requiring
a labor judge vacancy register post probate to in position prior appointment could coexist with the cisely ability tactfully, judgment and an exercise diplomacy. judge granting a circuit court
statute appoint register probate. See id. at 618. *30 bargain- ¶ The court held that the collective judge's supersede ing agreement the not could authority register probate. statutory appoint in See to a agree- provisions the Therefore, the within id. at 621. statutory regulate judge's purported to the ment which authority See id. void and unenforceable. were statutory authority appoint judge's a essence, the register probate in was held to be exclusive. again, relationship
¶ nature of the 61. Once the judge and his or her assistant does between a statutory change simply there is no not because appoint at circuit court an assistant the County, it in Iowa we find level. Given our decision appointment that the and removal difficult to conclude "jealously register probate power more of a guarded" by in is a to be judiciary power than the to remove the judges Friedrich, 192 themselves. See assistants to the Wis. 2d at 14.
VI. customary practices ¶62. in our Based on the judge uniquе relationship state, and the between bumping assistant, the his or her provision we conclude the circuit court cannot be harmonized with power judge's exclusive, to remove a judiciary provision the assistant. Because the obstructs thereby separa- sphere, the in violates its exclusive implied by powers principles constitution, our it tion of subject unenforceable, and not to arbitration. void, is proper applied stan- 63. The circuit court the conclusion law, dard of and reached a sustainable doing grant declaratory Therefore, so. relief for proper. was
By the Court.—The order of the circuit court is affirmed. 0dissenting). GESKE, 64. JANINE P. J. I dis- majority opinion important
sent. The errs two respects. majority mistakenly First, the concludes that power bump employee, despite a circuit court bargaining agreement, terms of a collective is an exclu- sive circuit court and not a shared legislative majority pur- Second, with the ports branch. impact rule, to state a narrow but true of this rule will be hard to contain. *31 upon
¶ 65. Based the Wisconsin Constitution interpreting and our constitutional case law shared powers, I would conclude that a circuit court shares power legislative with the branch the realm of court employment. realistically staff This conclusion artificially staff, all circuit embraces distinguish court and does not and between assistants other court employees. majority fully engaged Had the in a shared powers analysis, it would concluded that a have circuit prevent court has inherent constitutional being unilaterally a сourt staff member from removed replaced, despite bargain- the terms of collective ing agreement, replacement if such removal and unduly substantially burdens or interferes with the ability court's to conduct its constitutional functions responsibilities. the did this case circuit court factually powers the not undertake intensive shared analysis replacing to determine whether Ms. Melland qualified bargaining with another member of the unit unduly substantially would burden or interfere with I County.1 conclude that court of Eau Claire the circuit standard of law and wrong the circuit court applied so, the relevant facts. failed to examine doing by describ- majority begins analysis The its is no of the courts. There the inherent ing powers court over staff power employment that circuit dispute constitution, by conferred not an express power is of the courts. This from the inherent power but derives the nature of inherent described previously government: each branch of powers possessed accomplish its any agency may human In order that necessary possess power. The it is that it purposes, to direct and control his executive must have must superintendent works business. accomplish to direct his men. In order to have created, they are courts purposes for which immemorial, time possess powers. also From must been conceded to courts powers certain have powers have been they are courts. Such because they could neither without them conceded because business, nor dignity, maintain their transact their their existence. These aсcomplish purposes powers. powers are called Cannon, 196 Wis. 534, 536, 221 State v. N.W. are those par- Inherent powers its get branch governmental requires ticular even to consider whether the 1 The circuit court failed legislature's constitu employment decision here was within *32 grant authority presumably because tional equal an that Eau Claire is not branch concluded judiciary. The court concluded alter government with the state authority appoint natively county joint had to that even if the irrep remove, bumping provision of the would enforcement public, and such enforcement arably the courts and the harm judges. inherent would also diminish the job constitutional In case, done. this the circuit court clearly has inherent to assure that it has staff get job ques- to available its constitutional done. The power2 is, tion does the circuit court have exclusive say qualified persons which of several will aid the court getting job done? majority opinion analy
¶ 67. The offers a blurred answering question. correctly sis acknowledges that It many powers
that
inherent court
are
government.
shared with one of the other branches of
I
agree
majority
governmental pow
with the
that most
"great
ers lie within the
borderlands" of shared
authority. Majority op.
large
at
In
realm,
572.
that
"it is
possible
practical
categorize governmen
neither
nor
exclusively legislative,
tal action as
executive or
judicial." Majority op.
citing
at 572,
State ex rel. Fried
County,
rich v. Circuit Court
1, 14,
Dane
192 Wis. 2d
for
sion majority majority op. 588-89, the could court, at see lengthy engages in a discus- Instead, it have rested. sion, dicta, albeit of the Janitor decision and the *34 "unique" relationship judge between a and his or her placed assistant. Had that discussion been elsewhere opinion, persuasive. in the it would be no more For majority essentially Supreme instance, the elevates a Court Rule and Comment to the status of evidence prove "uniqueness" partic- sufficient to the value or of a ular assistant. Neither of those documents has any bearing appoint on whether and employees remove court is shared or exclusive. The only Rule is a recommendation for the creation of the position currently in courts that lack might meaning them. Those documents have on specific remand, but without factual determinations only speculation rosy we are left with and ideals. fact-finding ¶ 72. Remand for could have solidi- aspects majority's opinion. Again fied other of the in majority rely dicta the follows Janitor to on a historical authority "сustom"4 of exclusive circuit court in employment perspective decisions. While the historical
4Under England, the laws of Blackstone identified seven requisites every custom: long, memory 1. It must have been used so that the of man run- contrary.
neth not to the 2. It must have been continued. There must have been no inter- ruption right, though may possession. there have been of the peaceable acquiesced 3. It must have been in. reasonable, good
4. It must be or at least no reason can be assigned against it. ought It 5. to be certain. ought compulsory, although originally It to be established ought man, option every consent. It to be left to the whether he
will use it or not. other, 7. Customs must be consistent with each and must be strictly king's prerogative. construed and submit to the of exclu- in the core zone identifying assist courts can Friedrich, 2d function, see 192 Wis. court sive circuit not determinative references to "custom" are 14, vague If the record anything, this question.5 constitutional authority. shared here a "custom" of demonstrates do have not Eau Claire circuit employ- decision-making exclusive in the have judges only input ment Eau Claire realm. if the normal posting assistants employment bargaining agreement under the collective procedures interested any qualified do not result candidates.6 (Bernard ed., on Law C. Gavit
Blackstone's Commentaries 1941) 43-44. Washington Law Book *35 5 rights property in a of reliance on custom For criticism case, appellate court draws a fact-intensive conclusion when the analysis, City see Stevens v. without of trial court benefit of (1994) 1332, Beach, 1207, 114 Ct. 1335 Cannon 510 U.S. S. (mem.) (1993), 131, P.2d denying cert. to 317 Or. 854 449 (Scalia, O'Connor, dissenting): J. and J. (of custom) included, by requirements "The set forth Blackstone alia, public right inter- inter that the of access be exercised without i.e., ruption, obligatory, present in the the and that custom be option it not be to the of each landowner whether context that left dry-sand recognize right go public's the to on the area for
he will Thornton, however, Supreme purposes. of In the Court recreational Oregon these the historical existence of fact-intensive determined others) (as as in a that took less than criteria well five discussion Reporter. page the is all the more remarka- one full of Pacific That investigating Oregon Supreme a Court of was ble feat since instance', its court had not rested these criteria in the trial first argue not that the basis custom and the State did decision on of theory Supreme to the Court.” 6 not under the case I that Ms. Melland is even this note supervision indicates that Ms. Judge sole Lenz. record family reports Melland court commissioner. also
602
County
cites Iowa
again,
Dicta
the majority
Courthouse,
v. Iowa County
166
2dWis.
480
(1992),
N.W.2d 499
to assert
that a court's inherent
authority to
staff
appoint
cannot be modified
a col-
lective
"In
bargaining agreement.
essence,
the judge's
statutory authority
a
appoint
register
probate was
held to be
Majority
However,
exclusive."
at 594.
op.
Iowa County court expressly
declined to consider
whether a circuit court judge's
a
appoint
regis-
ter
an
probate was
constitutional
power.
Instead the
measured
opinion
only the court's statu-
tory powers against
terms of a
bargaining
collective
agreement. See
603 analysis, majority's described as 74. The own employment that staff above, for court demonstrates catego- practical possible nor to it neither decisions is exclusively governmental that action as rize legislative, judicial. Friedrich, 192 executive, or See Aрpointment Revisor, 141 In re 14; 2d at see also Wis. (1910). 124 The constitutional 592, 598, N.W. 670 Wis. authority legislative delegation employment deci- quite already the been described sions to counties op. fully by majority, majority at 574-76. The the see perform judiciary's inherent constitutional functions is also demonstrated its administrative authority, majority. I on both lines of would the Based regulation employment staff of court conclude that legislative area where falls within an responsibilities overlap. analysis step next in the is whether 75. The unconstitutionally overlap or substan burdens
that tially the functions and interferes with constitutional responsibilities court. See State v. circuit 352, 360, 441 2d N.W.2d Unnamed Defendant, county argued that there are no The that prove that of the county in this record enforcement facts provision bumping The is unconstitutional. alleged plaintiffs emphasized an have not that insufficient number of court staff that because agreement bump bargaining provides collective employee only ing when there is a senior will occur necessary qualifications, there is no undue with the with function of interference burden substantial bumping, according the circuit court. effect of only county, "temporary is inconvenience" to is asserts that because there no the court. AFSCME efficiency, provision bumping can be loss of court power. the court's inherent harmonized with *37 ¶ 76. AFSCME's counsel also contended at oral argument operation that there is no difference permanent employee the circuit court bumped a when is per- than when accommodations are made for maternity sonnel situations such as leave or sick leave. predicted AFSCME that the likelihood that a circuit judicial bumped assistant would be is much less employee than the likelihood that such an would pregnant become or leave for his or her own reasons. may they While AFSCME's assertions be true are not dispositive. proper powers analy- The focus in a shared particular person occupies sis is on neither the who frequency potential assistant desk nor the personnel changes. proper degree 77. The focus is on the independence functioning
threat to the and efficient Certainly branch. no one asserts that the separation doctrine is violated whenever a judicial employee resign decides to and seek other government, pur- work. When another branch of albeit bargaining agreement, suant to a collective acts unilaterally replace permanent, exper- to remove and member, ienced circuit court staff that unilateral act may infringe on the inherent of the court to dignity, maintain its transact its business and accom- plish purposes E.C., of its existence. See Breier v. 376, 386, 130 Wis. 2d 387 N.W.2d 72 argument county ¶ 78. At oral counsel for the agreed that all three circuit court assistants bumped county employee could in the be event of a contemplated reduction in force. Janitor court possibility. empowered such a Were the court not prevent "[i]t employees, unilateral ouster of its would impossible be to foresee when or how often such changes they might made, would be rendered be *38 very frequency." 35 at 417-18.
intolerable their only might again changes intolerable, not be but Then utility fact- the of the And therein lies inconvenient. specific interference test. undue burden/substantial the deci- 79. contends that Holmes AESCME judicial prohibits use of inherent the sion I do not read Holmes so mere inconvenience. avoid broadly. application example the Holmes is an of interference test where the undue burden/substantial interruption alleged is of interference unconstitutional court routine. effect of a Holmes court addressed the The upon the circuit court's substitution statute jurisdiction. See 106 Wis. 2d exercise
constitutional acknowledged that the statute 52. The court while at productive in time a decrease in resulted travel an in of increased and increase because legislature system operating state, costs to the inefficiencies, inconve- must have decided that higher by peremptory caused niences and costs price acceptable an for the benefits substitution were gained. See id. at 62. upheld
¶ 81. Holmes the substitution The court purpose fair trial its was ensure a statute because judge impartial harmo- an and the court could before legislative balancing nize the with need avoid significant interference with administration work. See id. at 66-67. Holmes also noted court's jurisdic- upheld similar had been other that statutes resulting despite on state courts. That tions burden calendaring court increased burden included scheduling problems as as interference with the well operation of the trial See id. normal and routine courts. Ultimately recognized that even if at 63-64. particular judge hearing prevented a from substitution case, cases were nevertheless heard and resolved. legis- See id. at 69-70. court also observed that the making lature was efforts to diminish the inefficiencies arising from the statute. concluding peremptory
¶ 82. substitution did not rise to the level of substantial interfer- ence or undue burden on the constitutional functions responsibilities system, of the court the Holmes court considered statistical evidence offered to show frequency requests the requests for substitution. Substitution percent
were filed
less than two
of the total
percent
cases, and in less than five
of the criminal
plaintiff judges
cases. See id. at 70. The
were not able to
prove
requests
that the volume of substitution
materi-
*39
ally impaired
operation
judicial system.
of the
See
only
id. at 71. Instead the
were
able to offer
perceptions
delay
inefficiency.
common sense
and
potential
This court considered the
for abuse of the
substitution statute
concluded
but
that such a criticism
gauged quantitatively.
could not be
See id. at 73.
by
¶
In
case,
contrast,
83.
this
the circuit court
weighing required by
never undertook the factual
major-
court,
Holmes. Instead the circuit
and now the
ity,
by concluding
power
appoint
erred
power,
staff is not a shared
but an exclusive
my
employment
of the court.
view
related
shared,
in this case is
but the current state of the
prevents
determining
record
this court from
as a mat-
bumping
ter of law whether
Ms. Melland would
substantially interfere with the constitutional
func-
responsibilities
County
tions and
of the Eau Claire
appropriate.
Circuit Court. Remand is therefore
remand,
84. On
the circuit court could have
analyzed
specific
position,
functions of the staff
responsibilities
employee,
impact
actual
of the
and the
bumping
functions
would have on the constitutional
examining
By
responsibilities
court.
of the circuit
could
assessed
factors, the circuit court
have
these
position
of Melland from her
removal Ms.
whether
judge
a court
to a
and to
commissioner
as assistant
inter-
undue
or substantial
result in an
burden
would
responsibilities of the
functions and
ference with the
Claire
Circuit Court.
Eau
"appointment
held that
This
generally
function,
called an executive
office, while
exclusively
classed
under our constitution be
as
cannot
great departments,"
function of either of
three
may
majority's
explain the
desire to cleave
which
"bumping"
employment
powers like
other
related
from
appointment.
at
Those
Revisor,
See
598.8
employment
powers,
other
related
virtue
inescapably
majority's rationale,
to the
are
added
now
expanding
Case
"core functions" of the
branch.
majority
appoint-
upon
relies
law
which the
address
e.g., majority op.
See,
at
ment and
tandem.
removal
majority
relies
n.18
n.22. The
also
and 588-89
upon industry
reach
recommendations and treatises to
power.
sources
its conclusion on exclusive
These
majority's
approach
diverge
because
from the
narrow
they
broadly
rights
courts the
would
reserve to the
discipline,
supervise
hire, administer,
court staff.
deny
relying
mаjority
decision,
that its
cannot
*40
8
Revisor,
holding
Appointment
In Re
141 Wis.
of
(1910),
valid,
recognition in
despite
part decisions. employment circuit court lim- rationale also cannot be majority's 86. The employment an over the ited to exclusive "trust rationale, Its based on the assistants." "judicial relationship, in this "unique" and confidence" involved of all circuit court to the applied employment will be that the Janitor decision, cited staff.9 Indeed it appears the trust and recognized at majority length, in many government employees. confidence reposed life, even down "In all the affairs and transactions strictly are and domestic private to those which nature, agency where the services or of others their relation, necessary, fiduciary or confidential are defined, and consti- clearly more or less marked and tuting engagement the consideration of part services, and employer of the and value between servant, known, is or master and well employed, respected. and This recognized its existence and every pervading confidence of trust and principle life, private, public both department of active upon and will recognizes law also and acts protect." enforce and
35 Wis. at broadly judges argument plaintiff for the At oral counsel staff, appoint and remove court power to asserted that bailiffs, Counsel did exclusive function. including is an bargaining agree collective argue provisions that other determined that the apply even if the court ment would still appointment over court had exclusive circuit agreed possi it was Along that line counsel removal decisions. grievances subsequently handle this court would ble although circuit court the circuit court brought by employees could, comity, grievances to collec a matter of submit as bargaining. tive *41 I declare that a circuit court 87. would authority prevent its staff member from
inherent being unilaterally replaced despite removed bargaining agreement if that terms of a collective unduly replacement or substan- removal and tially burdens the court's constitutional interferes with responsibilities. This conclusion is con- functions and of the court sistent with the recognized case, the Janitor also as far back as but delegation legislature's to coun- considers bargaining agreements to enter into collective with ties county including representatives employees, those My employed staff. conclusion would not affect as court agreement validity any bargaining pro- collective unduly substantially not visions that do burden See interfere with a court's constitutional functions. County WERC, 347, 358-59, v. 141 2d Kewaunee (Ct. 1987). App. N.W.2d respectfully I am I dissent. authorized Shirley state that Chief Justice S. Abrahamson Bradley join Ann in this dissent. Justice Walsh