*1 Plaintiff-Respondent, Dennis Kocken, 40, AFSCME, AFL-CIO and Wisconsin Council Employees, Brown Health Mental Center
Local 1901, AFSCME, AFL-CIO,
Defendants-Appellants.
Supreme Court
argument January
No. 2005AP2742. Oral
Decided June
For the respondent there was a brief the court of by Thomas P. appeals) Godar and Whyte Hirschboeck S.C., Madison, Dudek and oral by Thomas P. argument Godar.
An amicus Gunta, curiae brief was filed by Gregg J. Reak, Kevin P. Reak, John A. and Gunta & Wolfgang, S.C., Milwaukee, on behalf of the Badger State Sheriffs Association. *5 by George F.
An amicus curiae brief was filed Graf Radtke, on Milwaukee, G. behalf and Sandra Employees International Office and Professional Union, Local 35. C.J. This is
¶ ABRAHAMSON, S. case SHIRLEY appeals, the court of the court on certification before (2003-04).1 (Rule) § pursuant 809.61 to Wis. Stat. County, Mark A. 2. The circuit court for Brown injunction Judge, granted permanent Warpinski, County against Sheriff, Kocken, Dennis Brown AFL-CIO defendants, AFSCME, Council 40 Wisconsin (the Council) AFSCME, AFL- and Local District (which (AFSCME 1901) represents the Local CIO County employees provide service at who food Brown jail). enjoined County The circuit court the Brown any type pursuing from of action before defendants Employment or seek- Relations Commission Wisconsin injunctive ing Sheriff as it affect relief insofar would ability Corporation as a food to hire Aramark Kocken's jail. County provider Further- at the Brown service AFSCME Local 1901 more, the circuit court ordered prohibited practice complaint filed with its withdraw Employment with Relations Commission the Wisconsin prejudice. Sheriff Kocken's 3. This as a result of case arose prepare using county employees proposal stop County jail contract and instead for the Brown meals pre- provider. private issue food service with to enter Kocken's decision sented whether Sheriff is preparation meals for the for a contract into powers, the sheriffs constitutional inmates falls within subject legislative rights, duties, and is thus are to All Statutes references Wisconsin otherwise noted. 2003-04 version unless including bargaining agreement limitations, a collective county employees.2 between Brown *6 ¶ 4. For forth, the reasons set we hold that the hiring firing personnel provide Sheriffs and of food jail county service to the immemorial, is not a time principal, important and that characterizes and distinguishes office of sheriff, such, and as is not powers. within Rather, the Sheriffs constitutional hiring firing personnel provide food service to county the place" falls within the "mundane and common- management "internal and administrative du- protected by Hiring ties"3 not the constitution. firing personnel provide subject food to inmates is legislative regulation, including bargaining collective § under Wis. Stat. 111.70. The circuit court erred aas matter law when it concluded that the contract with Aramark at issue is within the sheriffs constitutional prerogative. This error law rendered the circuit judgment court's an erroneous exercise of discretion. judgment ¶ 5. We therefore reverse the circuit court and remand the cause the circuit court complaint seeking to dismiss Sheriff Kocken's declara- tory permanent injunction. relief. We also vacate the longer AFSCME Local 1901 is no restrained from pursuing complaint its filed with the Em- Wisconsin
2 The
bargaining
collective
agreement
pursu
was entered
111.70,
§
ant to Wis. Stat.
the Municipal Employment Relations
Municipal
Act. The
Employment Relations
requires
Act
municipal employers bargain collectively
employees
with
by any agreement
WERC,
abide
City
reached.
Janesville v.
(Ct.
492,
1995).
499,
193
2dWis.
App.
N.W.2d
3Heitkemper Wirsing,
182, 193,
194 Wis. 2d
533 N.W.2d
(1995);
986B,
County
Manitowoc
v. Local
2dWis.
(1992).
820,
I following stipulated parties facts ¶ 6. in circuit court: for Brown Prior to food inmates jail by
County jail prepared at the five Brown was represented by County Department employees Sheriffs also involved Union. Jail inmates were the Teamsters aspects all food service. completed construc- In 2001 Brown county jail facility. A was made of a new decision
tion county preparation for food 2001 to consolidate center, work release center, mental health *7 although jail facility, county jail the in the new the mental health center would all the food for jail. prepared processed in the at the The kitchen built or jail capacity facility a that to have was constructed new preparation food this consolidated would accommodate plan. plan, part new men- ¶ 9. As this consolidation adjacent to be constructed tal health center was connecting jail facility, two build- a tunnel the new with delivery among ings services, the facilitate, other jail center. There were from to the mental health food the similarly plans center, connect the work release no jail, county more at the old which would remain located jail facility. from the new than five miles in food As a of this consolidation result jail, employees preparing food at services at the single jail mental center became and at the health county employees represented group AFSCME Local 1901 of AFSCME 1901. Certain members Local jail jail began preparing inmates, for food in the for work release center and for the center, mental health and other members of AFSCME Local 1901 remained engaged in food service activities at the mental health bargaining agreement A center. collective was created County, between AFSCME Local 1901 and Brown governs wages, hours, which and other conditions employment employees. of these proposed
¶ 11. The new mental health plan center built, was not and there nois to connect the existing jail. mental health center with the new provide In order to food service to the exist- ing mental health center and the work center, release day, by two meal deliveries are truck, made each from jail kitchen the new to the mental health center and to the work release center. are Dishes returned jail from these locations to the kitchen.
¶ 13. Dennis Kocken was elected as County Brown in November 2002. proposed
¶ 14. Sheriff Kocken the food preparation County jail at the Brown be handled aas combination of inmate labor and the services of a private provider, private company food with the over- seeing provision population of meals for the inmate jail at the and the work release center. plan,
¶ 15. Under Sheriff Kocken's the Brown County employees represented by AFSCME Local 1901 prepare who food the Brown would no longer jail, they independently work at unless were *8 by private company. hired food service ¶ County employ- 16. On behalf of these Brown County ees, AFSCME Local 1901 demanded that Brown bargain regarding the decision to subcontract the food preparation jail. County at the Brown refused.
¶ 2004, In June AFSCME Local a 1901 filed complaint Employment with the Wisconsin Relations County alleging Brown against Commission a prohibited constituted bargain refusal County's 111.70(3)(a).4 § in violation of Wis. Stat. practice Kocken filed a 28, 2004, Sheriff 18. On June ¶ relief with the circuit court for declaratory for complaint An the District Council.5 County against Brown an Local 1901 as named AFSCME amended complaint injunctive sought Kocken also Sheriff party. additional relief. par- July by agreement 19. On a stay of Local 1901
ties, requested counsel for AFSCME Relations Employment the Wisconsin proceedings circuit court Commission, the outcome pending litigation. facts, the cir- the stipulated In addition to of fact after following findings made the
cuit court briefs, affidavits, and supporting receiving the parties' on the hearing pre- with the testimony connection liminary injunction:
(cid:127) sheriffs problems more for the Idle inmates create type of in some occupied than inmates who are
staff system preparation of meal activity. present Under the staff, there is inmate by mental health center less activity. 111.70(3)(a) part: "It is states relevant § Stat. Wisconsin individually or in practice municipal employer for a prohibited
a bargain collectively with others:... 4. To refuse concert with appropriate in an majority employees a of its representative bargaining unit...." collective answer, and AFSCME Local the District Council In their of food things, preparation that the alleged, among other power of was not a constitutional population
for the necessary join had failed to that Sheriff Kocken sheriff and action, Employment Relations Wisconsin party the com Commission, jurisdiction hear primary which had employees at issue. filed the Brown plaint *9 (cid:127) Increasing preparation inmate work in meal would
improve morale because occupied inmates would be productive activity. in
(cid:127) Aramark, which would offer the contract food service
under Sheriff proposal, Kocken's train would inmates in food log service and maintain a training. such (cid:127) preparation formerly Meal was a part of the sheriffs
budget. (cid:127) Savings would be realized Sheriff Kocken's con-
tracting Aramark, with and Sheriff Kocken intended savings to use these fill positions, continue train- ing, replace law enforcement vehicles. (cid:127) The former county acknowledged executive that had
the then-sheriff go along refused to with the consoli- plan dation would have been required kitchens, to construct two one for the new jail and one for the proposed mental health center. (cid:127) Approximately one million dollars were diverted
from the mental health center budget construction construct facility. kitchen In its decision on the preliminary injunc- tion, the circuit court stated that "this record is devoid of any suggestion that anyone attempted enjoin the Sheriff from the exercise of his constitutionally vested authority of deciding how the meal service was to be provided in 2001. That decision of the Sheriff was accomplished objection without so far as the Court is aware from the record that has been provided."6
6Based on findings, these the circuit court concluded as a matter of law that it was within the powers, rights, sheriffs duties to contract with provider a food service county jail, for the explaining that "[i]t is clear that the Sheriff in past has determined provide how he will the meals. For example, agreed the Sheriff to consolidate the food services with the food 5, 2004, the circuit court 22. On November *10 find- injunction, a preliminary Sheriff Kocken granted a merits, on the likelihood of a of success likelihood ing harm, remedy and an at law. inadequate irreparable of the circuit moved for reconsideration The defendants motion was denied. decision; court's the its 8, 2005, the circuit court issued July 23. On injunction, a and on Octo- granting permanent decision 2005, court entered its final 31, judgment the circuit ber Kocken a granting perma- amended order Sheriff defendants this injunction. appealed judgment nent The and order. pre- Health Center. It was Sheriffs the Mental
services joint this effort." rogative, obligation not involve himself legal basing it its conclusion The circuit court stated was Nussbaum, testimony of sheriffs on the Ms. executive, reasoning Court "[T]his as follows: former County testimony County's former Execu- on the of Brown relies Nusbaum, that had the Sheriff tive, Nancy who testified Ms. effort, joint that it would have join in a kitchen decided not to for the have two kitchens: one County's responsibility to been the new construction anticipated and one for the then County's Mental Health Center." testimony, however, support actual does
Ms. Nusbaum's testimony. Ms. Nusbaum description of the circuit court's kitchen, in of consolidated during the discussions testified that involved, the issue of no one raised was which then-sheriff Furthermore, testified she power of the sheriff. the constitutional to have then-sheriffs wish would have acceded that she (had stated), not kitchens, facility he so because in each two one any do or because the sheriff what could not tell she to seek issues, practice it her because was but constitutional key player if a plan go forward with consensus and not to it. opposed is not relevant practice Past sheriffs 16, WERC, App 2006 WI
authority. Dunn N.W.2d 138. Wis. 2d
r-H I—H grant ¶ 24. A circuit court's decision whether to injunctive relief is within the sound discretion "Injunctions, temporary per- circuit court.7 whether or lightly. manent, are not be issued must cause substantial."8
¶ 25. This court reviews a circuit court order
granting injunctive relief to determine whether the
erroneously
circuit court
exercised its discretion.9 A
discretionary
circuit court's
decision will be
if
sustained
*11
ap-
the circuit court has examined
facts,
the relevant
plied
proper
using
standard of law, and,
a demon-
process,
strated rational
reached a
a
conclusion that
exercising
reasonable court
reach.10 If
could
in
its
deciding question
discretion a
circuit court errs
a
of
upon
law
which its
of
rests,
exercise
discretion
erroneously
circuit court has
exercised its discretion.11
reviewing
¶
discretionary
In
a circuit court's
appellate
questions
an
decision,
court decides
of law
imbedded
discretion,
circuit court's exercise of
7
Co.,
v.
Wis. Elec. Power
64,
10,
2003 WI
262
¶
Hoffmann
264,
2dWis.
¶ 27. In the request governing for Kocken's Sheriff of law tion injunctive declaratory the Sheriffs relief is whether firing provide hiring personnel for food service powers, jail the constitutional is within the rights, If sheriff. the circuit of the office of and duties deciding question law, we need not erred in this court injunc- permanent requirements for a other address the tion.12 AFSCME Local court held that 28. The circuit complaint proceed before with its
1901, if allowed
Employment
Commission, would
Relations
Wisconsin
impinge upon
Kocken.
of Sheriff
a constitutional
operation
reasoned as follows:
The circuit court
[the]
constitutional duties"
is
obvious
"one
providing
an
of meals is
sheriff; "the
the office of
having
jail just
operating
a
as is
a
function of
essential
facility;"
it
been determined
and "once has
secured
um-
under this constitutional
actions fall
the Sheriffs
injunc
permanent
a
can issue
Before the circuit court
that future
tion,
probability
sufficient
plaintiff
"a
must show
injure
right of
of the defendant will violate
conduct
Org., 90
Coop. v. Nat'l Farmers
Milk Prods.
Pure
plaintiff."
(1979).
injunc
permanent
781, 800,
A
¶ 29. Because circuit court it determined that powers, rights, was within the constitutional and duties provider of the sheriff to hire the food service for the jail, the circuit court concluded that Sheriff legisla- Kocken could act without interference from the by bargaining ture and without limitation a collective agreement. Accordingly, the circuit court was satisfied request injunctive that Sheriff Kocken's for relief was warranted.
f—H I—IH-i deciding question ¶ 30. In of state constitutional law, we turn first to the text of the Wisconsin Consti- tution.
¶ 31. The Wisconsin Constitution establishes the provides office sheriff, for the selection and term of places holding sheriff, restrictions on the sheriffs partisan requirements other office, and creates for the giving security. 4(1)(a)
¶ 32. VI, Article section of the Wisconsin Constitution states that "sheriffs ... shall be chosen respective every the electors of the counties once years."13 vacancy "When occurs in the of sheriff, office vacancy by appointment shall be filled governor person appointed and the shall serve until his qualified."14 or her successor is elected and The consti- 13The recently constitution was to provide amended for the election of sheriffs four-year VI, See terms. Wis. Const. Art. 4(l)(b). § 4(6). VI, § Const. Art. *13 any may provides not hold that sheriffs tution further may required partisan be and that sheriffs office15 other security and, time in by from time to their renew law to security, giving office new their such shall default of deemed vacant.16 not delin- does
¶ Constitution 33. The Wisconsin rights, powers, of the office and duties eate the meaning powers, given law has The case sheriff. protected by rights, office of sheriff of the and duties constitution. state Acknowledging no- "the constitution that 34. rights powers, shall duties what
where defines belong sheriff," court, in office of attach or Kennedy Brunst, 412, 414 v. 26 Wis. ex rel. 1870 State (1870), of the constitution the framers that concluded generally "those to have office of sheriff intended the recognized legal belonging to it in and functions duties territory, country, the constitution when and in this "part explained adopted."17 that The court further was belong- parcel immemorial from time of the duties and ing constitutionally sheriff] [the law" are office of protected.18 these "time that unless reasoned court constitutionally protected were duties
immemorial" sheriff, in certain office "[t]he that The court concluded office; is, pro- the constitution sense, that is a constitutional by the electors be chosen sheriffs shall vides every often as years two as counties, once respective Brunst, Kennedy rel. v. 26 Wis. State ex happen." vacancies shall (1870). 412, 413-14 15 4(3)(a). VI, § Art. Const. Wis. 4(3)(b). VI, § Const. Art.
17 Brunst, at 26 Wis. 986B, County Local Manitowoc see also 413-14; Id. (1992). 819, 824, 484 N.W.2d Wis. 2d *14 from interference others, the by constitutional provi- securing sion the the to people right choose sheriffs would meaningless. become This analysis was set forth Brunst, 414-15, as Wis. follows: hold,
And it to us seems unreasonable to under a carefully provides constitution which for the election of sheriffs, office, etc., the legisla- fixes term of that the may ture detach from the office its duties and func- tions, and transfer those duties to another officer. In legislature this case it is that said the has attempted to largest sheriff, take the share of the duties of in point of emolument, and responsibility and to commit it to an by officer selected the of supervisors. board If legislature this, the why may can do it not deprive the sheriff of all the powers duties and appertaining to his office, and transfer them by to some officer not chosen certainly very the electors? It would be provision idle constitution, of the to right secure to the the electors to sheriffs, chose their and at the same time leave to the legislature power the to detach from the office of sheriff all the by duties and functions belonging law to that office when the constitution was adopted, and commit those duties to by some officer not elected people. be For this would to right secure to the electors the merely, choose a sheriff name while all the duties and of the might substance office belong exercised to an appointed by officer authority. some other 36. The Brunst court thus formulated the in into the sheriffs quiry constitutional powers, rights, and duties as an one, historical examining nature of the office of sheriff it as existed when the constitution cases, was In later beginning with State ex rel. adopted. Buech, Milwaukee County v. 474, 482, 177 N.W. (1920), inquiry into the constitutional preroga tives of the office of sheriff continued to focus on the office, historical attributes of the but the court limited rights, powers, and duties impor principal only "immemorial those distinguished characterized tant duties office."19 challenged applica- Buech, the sheriff In deputy to a as unconstitu- service law
tion of the civil civil service law court held that the The Buech tional. although hiring deputies, applied "at the sheriffs possessed power appoint law the sheriff common deputies." power According court, to the Buech give character and distinction hire does "peculiar" sheriff. to the office of it office; is not *15 not, in the words does The constitution state any legislative change "prohibitD in the court, Buech as powers, of a sheriff functions, and liabilities duties, they law."20 at common existed Heitkemper explained
¶ 38. The court (1995), Wirsing, 770 182, 189, 2d 533 N.W.2d 194 Wis. "rejected any interpretations of Brunst Buech that constitutionally pro within the tried to which include by powers all held of the sheriff functions tected [Brunst] court Rather, law. at the common determining functions for which the test indicated exacting." constitutionally protected was more were manage explained Heitkemper that "internal court important, fall duties," administrative while ment and commonplace" duties not "mundane within protected the constitution.21 19 Buech, County v. 171 Wis. ex rel. Milwaukee State (1920). 482, 177 N.W 781
20 Id. 986B, 2d Local 168 Wis. 193; at Heitkemper, 2d ("The may regulate the administra still legislature "). .. of a sheriff.. executive duties tive and addressing
¶ 39. Cases the constitutional dimen- following sions of the office of sheriff establish the identifying powers, criteria for a sheriffs constitutional rights, principal, and duties: certain immemorial, important duties of the sheriff at common law that are peculiar to the office of sheriff and that characterize distinguish constitutionally protected the office are legislative from interference.22 pro- 40. Nevertheless, the constitution does not legislative change powers, hibit all in the duties, func- they tions, and liabilities of a sheriff as existed at "[I]internal management common law.23 and adminis- [that] gave trative duties. . . neither 'character' nor 'distinction' to the office of sheriff... fall within the mundane and common administrative duties of sher- may regulated by legislature."24 iff which carefully explained 41. The court has its reason ing allowing legislative change powers, for to certain rights, and legis duties of a sheriff as If the follows: lature act, could not "a constitutional amendment necessary change would be in order to the duties of slightest degree, sheriffs in the respect and in this 'the "25 state would be stretched on a bed of Procrustes.' 22Buech, 171 482; 986B, Wis. 2d at see also Local *16 Wis. 2d at 826-27.
23Buech,
stating that the parcel part the duties inmates are and care of belonging to the office immemorial from time In the Brunst the office. and are distinctive to [of "[a]mong sheriff], one those duties court stated that 986B, Heitkemper, also 826. See Local 2d 2d at 193. 194 Wis. *17 acknowledged
of the most characteristic and well was custody jail prisoners of the common and of the opinions attorney therein."27 Case law and the of the general recognize operation have continued to that the jail primary duty of the is a of the office sheriff that "gavecharacter and distinction to the office"at common prerogative law and thus within is the constitutional the sheriff.28 Aspects operation jail,
¶ 45. of the of the however, including provision inmates, food for have been by governed early statute. As as 1881, the court held obligation that the sheriff has an to furnish board for jail. those housed aat But the court did not characterize duty to furnish as a board "time immemorial" task. responsibility Rather the court located the sheriffs statutory obligations prescribed by legisla- "[t]he duty ture.29 furnishing The court declared that persons jail absolutely imposed board for upon confined in is by applicable the sheriff law."30 The "statute imposes responsibility upon the absolute charge custody officer 'to take the bis persons keep therein, and the them himself, "31 deputy jailer.' or his or Today, § requires Wis. Stat. 302.37 the sher- custody provide iff to take of inmates and them with adequate 302.37(l)(a) § nourishment. Wisconsin Stat. part: states relevant
27Brunst,
30Id.
31Id. at 433-34. *18 constantly keeper jail of a shall The or other sheriff strict pay in a healthful condition keep it clean and prisoners of the personal cleanliness attention clothing prisoner the of each and shall cause or shall furnish keeper laundered. The sheriff properly water, bedding. towels and prisoner each clean with 3 times keeper prisoner The or serve each shall well-cooked, The enough food. daily with wholesome adequate diet for the prescribe shall an county board jail. in the prisoners course, legisla- fact that the simple 47. Of the
¶ sheriff, of the like a duty responsibility ture codified inmates, does not sheriffs jail strip food for providing have they may regarding any protections constitutional fact the task of Likewise, duty. simple this the has a jail long- inmates in the been food to providing of the sheriff does not standing statutory responsibility duty protections.32 imbue this with the in the in- between dispute parties hiring whether a sheriffs case centers on stant inmates, service to food firing provide of personnel a contracting with food Sheriff Kocken's including County the Brown jail for inmates at service provider powers, rights, is the sheriffs constitutional jail, within and duties.33 WERC, 9, 293 App See Dunn 2006 WI record, According to the 2d 718 N.W.2d personally at one time County sheriff and his wife
Brown jail. in the food handled service his constitu the issue as Although Sheriff Kocken states system, delivery attempts he a meal tional to choose part as provider service justify ability his to select food According of food. just provision power than broader has Kocken, provider the food service decision about Sheriff this for may generate opportunities it ramifications: important ¶ 49. Sheriff Kocken insists that the circuit court analyzed properly when law it found that provision of food at the was within the "time According immemorial" duties of the office of sheriff. Kocken, Sheriff the case law makes clear that jail, operation including the care inmates jail, is a constitutional of the office of sheriff such that a sheriff tois be afforded full discretion in performing duty. urges this Sheriff Kocken this court to adopt reasoning: the circuit court's Provision of is food aspect caring operating a central for inmates and jail, *19 therefore, and sheriff the has sole constitutional responsibility manage and administer this constitu- including hiring provider. task, tional the food service ¶ contrast, In the defendants, District the Council and AFSCME Local contend that the hiring firing personnel provide and of food service for county jail preroga- the is not the within constitutional of tives the office of sheriff and is instead one the commonplace management mundane and internal and give administrative tasks that do not character and Accordingly, distinction to the office. the defendants argue hiring provider that the of a food service for the rehabilitation, inmate training like certification; and create savings; budgetary fiscal and affect other considerations. These consequences not, however, collateral do inquiry transform our into whether the sheriff has the design implement programs jail rehabilitative at the or to reduce expenditures. The parties arguments focus their on the sheriffs food, to provide decision, not the ramifications of the do question presented so we. The parties the and the non-party legal question briefs is a of whether the sheriff had ability provider the to choose a jail, food for the not whether he right made the choice and not whether the powers sheriff has implement rehabilitative programs budgetary or make deci- sions. jail regulated by legislature and can can be bargaining subject agreement to a collective entered Employee
pursuant Municipal Relations Act. question presented approach not 51. We do gain guidance by writing in the on a We application blank slate. proper of the criteria case about instant defining pow- and non-constitutional the constitutional prior rights, from ers, and duties of office pre- that addressed the constitutional court decisions rogatives sheriff, from the the office of as well as attorney general.34 published opinions of the Wisconsin constitutionally recognizing We first examine cases rights, protected powers, and duties of the office powers, declaring then the cases certain sheriff and protected. constitutionally rights, and duties jail jail operation The and care of the recognized has been as within constitu- inmates operation powers sheriff, of the tional of the because the jail gives to the office of and distinction character legislation down the court struck sheriff. Thus assigning operation an officer the entire unconstitu- other than the sheriff. court declared making of correc- the Milwaukee house tional statute County jail making inspec- tion Milwaukee *20 jailer the officio,the correction, house of ex tor of the jail charge custody county and of the exclusive and with legislature prisoners held the therein. The court that all office of sheriff from the constitutional could not take 34 unpub or Attorney Opinions, published General whether may, authority court lished, binding on this court. The are authority gain however, as persuasive to treat them choose has analyses. Attorney General's Office guidance their The from one .spanning over opinions, period in a published numerous prerogatives on the constitutional years, expounding hundred of the office of sheriff.
289
part
government
of the office and
it
transfer
to another
appointed
officer who
in a
was
different manner and
provided
held a different
tenure than that
for the
by
sheriff
the state constitution.35
general,
attorney
Furthermore,
the
in an
opinion published
opined
1979,
because
the
authority
constitutional nature of the sheriffs
over the
jail,
county
the sheriff could order the
clerk to return a.
jail keys
though
gave
set of
to the sheriff, even
statutes
county
power
the
board the
to construct and maintain
jail
county property
and declared that the
shall be
by
county.
held
the clerk in the name of the
attorney general explained
power
that because the
over
jail
important
"is an
attribute of the constitutional
county
sheriff,
office of
board cannot constitution-
ally
change
by
power
effect
in the substance of that
transferring custody
clerk or
requiring
custody
the sheriff and the clerk to share
jail."36
constitutionally protected
54. Another
prerogative
recognized by
of the office of sheriff
special relationship
courts is the sheriffs
with the
County,
courts. See Wis.
'l Police Ass'n v. Dane
106
Prof
(1982) (WPPAI).
303,
2d
305,
N.W.2d
This
relationship between the sheriff and the courts is
"peculiar
"gives
to" and
character and distinction to" performed by
office
sheriff. The duties
the court
designated by
among
principal
officer
the sheriff are
important
duties that characterize the office of
may
sheriff, and,
therefore,
not be restricted
35 Brunst, 26 Wis. at 415.
'l
See also Wis.
Police Ass'n v.
Prof
Dane County,
(1982)
303, 313,
106 Wis. 2d
¶
relationship
56.
with the sheriffs
appeals
courts,
to the
the court of
held Wisconsin
Employee
Police Ass'n/Law
Professional
Enforcement
County,
Relations Division v. Dane
699,
149
2dWis.
(Ct.
1989) (WPPAII),
App.
625
439 N.W.2d
that the
sheriffs
"to execute court-issued arrest warrants
bring
prisoner"
before the court a
was a cardinal and
law,
[A]t common
obliged
the sheriff was
officer
an
of the court and
today subject
to the court's commands. The sheriff remains
orders of the courts. We conclude that
when
an
executes
by
prisoner
arrest
bring
warrant
issued
the court
before the
upon
court the sheriff attends
the court.
Police
Employee Relations
Ass'n/Law
Prof'l
Enforcement
v.
County,
699, 706-07,
Div. Dane
149 Wis. 2d
625
N.W.2d
(Ct.
1989) (WPPA (citations omitted).
App.
ID
I,
WPPA
41Id., giving responsibility character sheriff, traditional Accordingly, appeals the court of of sheriff. to the office right to enlist'the services that the sheriffs concluded conveyance prisoners for interstate the U.S. Marshal bargaining by agree- "may a collective limited ment."42 recog- powers, rights, and duties Two other clearly accepted the courts as within
nized prerogative of office of sheriff are peace.43 preserving maintaining law and order *23 constitutionally protected pre- involving In case this a appeals rogative of has sheriff, office of the court right a create concluded that a sheriff has consisting temporary of various law mutual aid unit special emergency, a officers to address enforcement objection seeking deputy despite a overtime of bargaining agree- opportunities under the collective Washington explained appeals court of ment. The Washington County Deputy Ass'n, County v. Sheriffs (Ct. 1995), App. 468 192 2d 531 N.W.2d pa- assignment municipal "[the sheriffs] of officers to assigned deputies duty normally in the was trol emergency anticipation possible a situa- reasonable proper Harleyfest during case, a and, in this was tion peace preserve . . . .”44 of a sheriffs exercise 42 II, at 712. 149 Wis. 2d WPPA 43 I, 986B, 830; 2d at WPPA 106 Wis. Local 168 Wis. 2d Comm'n, 234, 240, 52 N.W.2d 313; 261 Wis. Andreski v. Indus. (1952) (a involving case whether compensation worker's eligible for his widow was so that sheriff was on business compensation). County Deputy County Washington Washington (Ct. Ass'n, 728, 741, App. 531 N.W.2d 192 Wis. 2d
Sheriffs added). 1995) (emphasis
Again, special the court on focused "nature job assigned general power job rather than the assignment."45 involving In another case the same consti- prerogative, 986B,
tutional Manitowoc v. Local (1992), 168 Wis. 2d N.W.2d 534 the court right concluded that a sheriff had the constitutional assign specially qualified deputy patrol duty from unique position.46 explained fill a undercover The court preserving peace that "law enforcement and were 'gave duties which character and distinction' "47 office of . sheriff.. and "undercover detective work is contemporary method of the exercise of the sheriffs maintaining historical duties of law and order and preserving peace."48 emphasized, The court how- "legislature may regulate ever, that the still the admin- istrative and executive a sheriff, duties of and the bargaining agreement wages, collective will still control employment."49 hours and conditions of pressly The court ex- holding declared that its about the undercover agent is narrow and limited to the facts the case.50 Again, special the court focused on the "nature of the job assigned job general power rather than the assignment.."51 *24 appeals
¶
The
59.
court of
in Dunn
App
WERC,
¶
120,
2006
23,
WI
637,
293 Wis. 2d
45
I,
WPPA
46 986B, Local 168 2d at Wis. 830. 47 Id. at 828.
48 Id. at 830.
49 Id. at 831.
50 Id. See also Heitkemper, 194 2d at (interpret 192-93 Local 986B ing narrowly). 51 I, WPPA 106 Wis. 2d 312. applicability explained the limited 138, has
718 N.W.2d agent case. and the undercover aid case of the mutual specific appeals, "very They the court of involve, wrote scheduling day-to-day re- assignments, routine not quirements."52 all mat- that not
¶ demonstrate Other cases 60. rights, powers, and duties related to the sheriffs ters peace preserve the are and to law and order maintain constitutionally protected discre- the total and within is when a task words, In even the sheriff. other tion of rights, powers, constitutional related to a sheriffs may maintaining order, the sheriff law and like duties, perfor- regard subject legislative regulation in reasoning duty. been that The has that court's mance of responsible many relate a sheriff is tasks for which rights, powers, and duties office's constitutional commonplace" "inter- nondistinctive, "mundane are management a sheriff. duties of and administrative" nal on constitutional themselves take do not Such duties legislature. regulated by the and can be dimensions prerogative example, ¶ 61. For law and order maintain of sheriff to of the office encompass power peace preserve does deputies. appoint or dismiss deputies appointment and dismissal management and adminis- internal
are non-distinctive tasks to the constitutional tasks, in contrast trative Although law previously at common described. deputies, authority appoint power or had the power or "was not held that this the court has WERC, 23, App County v. 2006 WI Dunn Wis. 2d Wis. 2d
authority gave that character and distinction to the office."53 in Thus State ex rel. Milwaukee v. (1920), Buech, 177 N.W. 781 the court upheld constitutionality providing of a for a statute system defining limiting civil service that included and authority discharge deputies. the sheriffs to hire and holding Heitkemper The Wirsing, in court reaffirmed this (1995), 2dWis. N.W.2d stat- ing "[w]hile management that internal and administra- important, they tive duties as such termination are gave neither 'character' nor 'distinction' to the office of specifically power Rather, sheriff. duties, these dismiss, fall within mundane and common admin- may regulated by istrative duties of sheriff which be legislature."54 subject ¶ 63. The sheriff is thus civil service requirements hiring discharging depu- in the and
53Buech, at 482. 171 Wis. disposition question With no [State doctrine ex rel. Brunst], Kennedy v. we do not think be it should extended to the urged. extent here We think it should confined to those principal important immemorial and duties that characterized distinguished the office. While at common law the sheriff possessed power appoint deputies, it was not a or authority gave Many character and distinction the office. possessed power. other officers as well as sheriffs It was more general power possessed by in the nature of a all officers to a extent, peculiar more or less and was not to the office of sheriff. held, judgment, It should in not be our that the constitution prohibits any legislative change duties, functions, powers, in the they liabilities of a as existed common law. If that true, necessary were a constitutional amendment would be change slightest degree, order to the duties of sheriffs respect, in this "the state would be stretched on a bed of Procrustes." 54Heitkemper, 194 2dWis. at 193. *26 newly reelected sheriff who wishes elected or A
ties.55 previously appointed reappoint a or not to dismiss authority possess deputy constitutional not the does by the collective is instead bound The sheriff do so. agreement.56 bargaining working of the sheriffs
¶ environment 64. may legislature may regulated or be the office agreements. bargaining subject The court to collective may regulate legislature the "The still declared: has the sheriff, of a and executive duties and administrative wages, agreement bargaining control will still collective employment."57 hours and conditions opined attorney general that ¶ Likewise, the 65. compen- may fix number and the board including honorary deputies, deputy sheriffs, of all sation powers usurping of the sher- constitutional without explained attorney general opinion, the iff58In another aspects of sheriff of the office the administrative that emphasizing that "the nature, are not constitutional Legislature prohibit from does not constitution powers, exercising any duties, functions control of the they law, at common as existed and of a sheriff liabilities including many may regulate matters, such and it deputies compensation appointment of his other subordinates."59 55Buech, 482; County see also Brown 171 Wis. Sheriffs Employ Non-supervisory Dep't Brown
Dep't v.
Sheriffs
(1995).
273-74,
Ass'n,
265,
57 County v. 986B, also Dunn 2d at 831. See Local 168 Wis. 637, N.W.2d WERC, 120, 23, 293 2d 718 App 2006 WI 58 (Nov. 1979). 8, 334, Att'y Gen. 339 Op. 1988). Op. also 68 See (Apr. Att'y Gen. Op. 1979). (Nov. 8, 334, 339-40
Att'y Gen. analysis opinions An of the case law and attorney general just demonstrates that because the jail
officeof sheriff has constitutional over the every aspect care of the inmates does mean operation every aspect caring or for the powers. inmates falls within the sheriffs constitutional Although traditionally may respon- the sheriff have been providing sible for foodto the inmates care, under his inquiry exclusively does not focus on responsible whether the sheriff was for food service at *27 common law.60Rather the focus in the constitutional inquiry hiring firing on is whether the of and task personnel provide gives to food to inmates distinction and character to the office of sheriff or whether the task commonplace management ais mundane and internal and administrative of the office. present assign- 67. The case involves a routine operation
ment of the sheriffs duties related to the
jail
Adhering
and care for inmates.
law,
case
we
job assigned,
provid-
focus on the nature of the
is,
that
ing
general power
job assign-
food, rather than the
opinions
attorney
ment.61 The case law and the
of the
general
hiring
firing personnel
make clear that
and
provide
including contracting
service,
food
with a food
provider,
employment
service
is more akin to the other
previously
decisions that this court has
determined to
commonplace
management
be mundane and
internal
attorney
The
general opined
might
there
be a
question
constitutional
legislature
whether
deprive
could
the sheriff of the privilege
electing
to feed the inmates
himself or
means of the services of his wife and avoided
answering
question.
Op. Att'y
(May 18,
Gen.
1951).
I,WPPA
single-handedly inmates, the the food for a butcher, baker, a or was not known as History prepa- that the active meal-maker. makes clear not have a of food to inmates does ration service gives character and immemorial" nature that "time operations all office of sheriff.62Not distinction to the prerogative; jail fall the sheriffs constitutional within individually analyzed and assessed. each task must be *28 just legislature prescribe Thus, the can as power to hire or terminate on the sheriffs limitations preserve deputies the maintain and order and who law distinc jail inmates bears little provision The of food institutions, other from the of food to residents of provision tion schools, mental including prisons, reform state orphanages, of these other institu asylums, poorhouses. and For discussion Wisconsin, tions, Current, Volume History Richard N. The see 1848-1873, Era, 186-88, 190-91, 515-18 The Civil War II: (William ed., Society of State Historical Thompson Fletcher 1976). Wisconsin peace, legislature regulate employ- so too can the the ment for food service workers at the decisions jail. persuaded
¶ 70. We are our conclusion is correct by examining consequences adopting Sheriff position. hiring Kocken's If we determined that and firing personnel provide county jail food for the is power merely fact a constitutional of the office of sheriff because it is related sheriffs constitutional jail operate and inmates, care for and then commonplace management all mundane and internal aspects operation jail and administrative of the of the similarly and care of the inmates would become consti- tutionally protected prerogatives of sheriff, such any might changes legislature want management to make commonplace mundane and or internal aspects operation administrative of the might require care of inmates a constitutional amend- ment. today
¶ 71. Moreover, our decision
has conse-
quences beyond
office of
sheriff. Section of Article
applies
only
VI of the state constitution
to sheriffs
attorneys
but also to district
A
other officers. broad
characterization of the immemorial and distinctive
principles characteristics of
office of sheriff
similarly applied
could be
to other constitutional of-
stretching
fices, further
on a
state
bed of Pro-
crustes.63
instance,
For
County,
Schultz v. Milwaukee
245 Wis.
(1944),
tional aspects of office of applied coroner and the standard used for the prerogatives of the office of sheriff established in Brunst. court concluded that "the holding inquests was not such distinctive and characteristic feature the office adoption of coroner the time of the of the consti *29 firing personnel pro- hiring to sum, In not fall within the food does vide service Having rights, powers, of sheriff. and duties of the office provider a selection of food service that the concluded county jail the constitutional is not within for the powers sheriff, we hold that office of
and duties of the erroneously in its discretion exercised the circuit court rendering judgment Kocken. The in favor of Sheriff erroneously in exercised its discretion court circuit granting injunction permanent it erred as when concluding had consti- that the sheriff matter of law authority designate tutionally protected a food ser- bargain- by provider limitation collective vice ing agreement without Municipal pursuant entered Employment Act. Relations pre- Although powers and the constitutional by
rogatives limited cannot be of the office of sheriff bargaining agreements,64 is "not if a function collective by Constitution, then to the sheriff reserved bargaining by may the collective bound be agreement into between the entered Municipal Employment by Relations virtue of the union ,"65 (MERA) . .. Act create another legislature deprive
tution as Schultz, upon it." inquests hold impose the office and at 121-22. 245 Wis. I, also WPPA 2d at 193. See Heitkemper, See Wis. 2d at 314. 65 Id. at 315. present in the agreement at issue bargaining The collective the Brown County Between Brown "Agreement is an case Employees Local 1901." County Health Center Mental Sheriff agreement, party a named Although not Brown explained may bound it. As we Kocken *30 ¶ 74. We need on not comment further the nature bargaining agreement. or the effect of collective That merely issue is not before the court. We conclude that hiring firing personnel provide and the food for the County jail Brown is not within Sheriff Kocken's con- may authority by legislation, stitutional and be limited including Employment Municipal the Relations Act.
¶ 75. For the set forth, reasons we hold that the hiring firing personnel provide Sheriffs and food county jail service to the not a immemorial," is "time principal, important duty and that characterizes and distinguishes the sheriff, such, office of and as is not powers. within the Sheriffs constitutional Rather, the hiring firing personnel provide and food service to county the place" falls within "mundane and common- management "internal and administrative du- protected by Hiring ties"66 not the constitution. and firing personnel provide subject food to inmates is legislative regulation, including bargaining collective § under Stat. 111.70. The circuit court erred as a matter of law when it concluded that the contract at prerogative. issue is within the sheriffs constitutional judgment This error of law rendered the circuit court's an erroneous exercise of discretion. Department, argues "[t]he sheriff he should not be
Sheriffs
'agreement
bound to the
to arbitrate' because he is not a party
However,
bargaining agreement.
collective
legislature
has provided
county,
sheriff,
with the option of
adopting
59.21(8)(b),
Likewise,
§
clearly
Stats.
can
collectively bargain
choose to
employment
terms of
demotion,
suspension,
deputy
dismissal of
sheriffs." Brown
Dep't,
circuit court and remand complaint seeking declara- Kocken's to dismiss Sheriff tory injunction. permanent vacate the relief. We also longer no restrained from Local 1901 is AFSCME complaint pursuing Em- its filed with the Wisconsin pursuant ployment Commission, to Wis. Stat. Relations Municipal Employment § Relations Act. 111.70, the By order of the circuit court the Court.—The cause remanded. is reversed *31 ¶ ROGGENSACK, J. PATIENCE DRAKE provi- majority (dissenting). the The concludes that including power a food food, of the to select service sion powers provider, fall the constitutional does not within Majority op., ¶¶ 4, of and duties of the office sheriff. majority opinion lacks our traditional The constitu- necessary analysis determine whether that is tional feeding prisoners the constitutional falls within the powers However, under- when and duties sheriff. analysis that the constitu- taken, such demonstrates powers the care duties of the sheriff include tional and county jail, duty custody prisoners in the which Accordingly, encompasses feed them. agreement bargaining from the cannot detach collective duties that those constitutional office of sheriff people Because elected the sheriff to undertake. have away majority opinion from the office takes gives power part of its constitutional by people, I not elected those who were respectfully dissent.
I. BACKGROUND (Local 1901), which Local 1901 79. AFSCME complaint county employees, represents in filed a June Employment Relations Corn- with the Wisconsin (WERC) against County, regard mission Brown in by County means Sheriff, which the Brown Dennis provide jail prisoners. Kocken, chose to meals to complaint alleged County that Brown had committed a prohibited practice labor in violation of Wis. Stat. 111.70(3)(a) (2003-04),1 § bargain it because refused to with Local 1901 Sheriff on Kocken's decision to subcon- provision jail prisoners. tract meals for pri- ¶ 80. Sheriff Kocken had contracted with a party, provide jail prisoners. Aramark, vate meals to According to Kocken, Sheriff his decision was intri- cately many jail. aspects running related to He explained County it would save Brown $1,000,000, provide training jail prisoners, improve food-service for prisoner improve jail safety. morale and jail prisoners to 2001, 81. Prior food for was provided County Department the Brown Sheriffs employees. They were not members of Local they preparation by jail prisoners. were assisted meal anticipation projects, In construction County the Brown Sheriff decided to food consolidate County service for the with that for Mental Health Center and the Work Release Center. As *32 preparation a result of this food consolidation, Local bargaining 1901 became the unit for the food service providers prisoner preparation in involvement food was discontinued. anticipated
¶ 82. When the construction, for which the food service consolidated, was occur, did not employ provide Sheriff Kocken decided to Aramark to prisoner doing meals because so would save Brown County $1,000,000, and Aramark would train uti- 1All further references to Wisconsin Statutes are version, 2003-04 unless otherwise noted. preparation. prisoners in food of lize the services prisoners credit for the also receive sentence The would prisoner increase morale worked, which would hours jail safety. program that Local It this entire is complaint affects. 1901's
II. DISCUSSION A. Standard Review question
¶ of constitu- 83. This case involves independently. interpretation that review tional we Schilling Rights Board, 2005 WI Crime Victims ¶ 2d 216, 692 N.W.2d 278 Wis. Constitution, VI,
B. Article Section Wisconsin provisions that relate VI, of the contained within Article Section sheriffs are provides part: It relevant Wisconsin Constitution. by respec- be chosen the electors of [S]heriffs shall years. . term 4 ... Sheriffs tive .. for the counties may any partisan hold other office. ... Sheriffs security their from may required by law to renew security time, giving such new and in default time governor . .. The deemed their office shall be vacant. sheriff] . any giving [the ... .. may [sheriff] remove being charges opportunity and an copy office of vacancy occurs heard. ... When a sheriff, vacancy appointment be filled shall governor, shall serve until person appointed and the qualified. or is elected and his her successor interpret Wisconsin Constitu- we 85. When give the framers effect to the "intent of tion, we do so Schilling, adopted people it." who and of the *33 305 omitted). (citations doing ¶ 2d 216, Wis. 13 In so under analysis,2 our traditional constitutional we examine plain meaning three sources: words, practices they context; the at as existed the time the interpreta constitution was and written; the earliest provision of tions the constitutional under consider ation. Wis. Citizens Concerned Cranes & v. Doves for ¶ DNR, 40, 44, 2004 WI 270 318, Wis. 2d 677 N.W.2d (citations omitted). 612
¶ apply 86. The constitutional directives that provide the office of sheriff for the election sheriffs of they and fix the term of but office, do not describe the powers of and duties that office. Because specificity, questions regard lack this to sheriffs' powers and duties have been addressed Wisconsin years. for courts more 100 than See State ex rel. (1870). Kennedy Brunst, v. 26 412Wis. inspector
¶ Brunst, In of the Milwaukee sought house correction towrit direct the Milwau- prisoners kee Sheriff turn over all confined jail. inspector The based an his demand on 1870
2
majority
opinion
analysis
claims that
its
is "tradi
Majority op.,
However,
talking
talk,
tional."
only
it is
¶
walking
majority
the walk. The
opinion
analyze
does not
rely
on
powers
they
and duties of the sheriff as
existed
at the time the constitution was ratified or the earliest
inter
pretations of
provision
issue,
the constitutional
as we did in
DNR,
Wisconsin Citizens Concerned
Cranes & Doves v.
2004
for
40,
44,
318,
WI
612;
Cole,
270
Wis. 2d
677 N.W.2d
State v.
112,
10,
2003
520,
WI
2d
328;
665 N.W.2d
Thompson
Craney,
v.
2dWis.
N.W.2d
(1996).
Brunst,
It mentions
ex
Kennedy
State
rel.
statute county jail jailor, inspector ex officio.Id. the as the and comply demand, to with the The sheriff refused at 413. custody prisoners claiming the of care and that the belonging jail to time immemorial the "duties from were sheriff]." [the framers Id. We reasoned that the office of [of the office "had reference to of the constitution sheriff] legal generally recognized and duties with those country, belonging in it in and the to this functions territory, adopted." Id. at was when the constitution following Important the ratio- to our decision was 414. nale: the certainly very idle provision
It be a would to right to the constitution, to secure the electors the sheriffs, same time to their and the leave choose legislature to detach from the office of sheriff power the by belonging law to that all and functions the duties and commit adopted, constitution was office when the by people. not elected the duties to some officer those right the to the For would be secure electors this and all the duties merely, a sheriff in name while choose belong by might exercised and of the office substance authority. some other appointed an officer Id. at 414-15. legal and on common law duties Based in when the Wisconsin of a sheriff
functions it concluded that was ratified, we Constitution was grant impermissible constitutionally to another sheriff. Id. at and duties of the law functions common legislature was without Therefore, powers those and duties office of sheriff from the detach our decision held at common law. Because a sheriff only years after the Wisconsin Brunst was issued interpreta- the earliest ratified and is was Constitution relating provisions tion of constitutional reasoning subsequent sheriff, its is foundation all opinions powers that have addressed duties sheriffs.3
¶ 89. Brunst identified the sheriffs constitutional
powers and
duties at
time the constitution was
(1)
They
having custody
ratified.
include:
and the care
(2)
prisoners
preservation
and the
therein;
(3)
public peace;
execution of
writs
other
reasoning
service of the courts. Id. at
Our
413-14.
scope
powers
Brunst about the
of the common law
*35
duties
we
sheriff and how
identified those same
powers
powers
and
duties as
constitutional
duties
a sheriff when the Wisconsin Constitution was
important
understanding
pre-
ratified is
the issues
analysis
for
sented
our review in the case before us. Our
analysis
in Brunst is
traditional,
that
years
we have continued to use for more than 100
meaning
provision.4
determine the
of a constitutional
analysis
well-respected
Brunst's
is
also
cited
treatise,
Anderson,
Walter H.
Anderson on Sheriffs,
(Dennis
1941),
Coroners
Constables 37
& Co., Inc.
analysis.
which
concurs
our
explained
¶ 90. As has been
in learned treatises
that examine the
sheriff,
office of
the common law
powers and duties that the sheriff held also included
powers necessary
performance."
"the
for
William
their
Sr.,
L. Murfree,
Law
and Other Ministerial
of Sheriffs
(2d
1890). Accordingly,
ed.
if a
sheriff had
Officers
3I note
position
"[t]he
that
of sheriff is one of great
antiquity and honor.
deputy
king
He was the
of the
in his shire
and was accountable to
king."
no one but the
Andreski v. Indus.
Comm'n,
(1952).
234, 239,
261 Wis.
particular the care of the law, such as at common necessary powers prisoners, had all of the he also duty. perform that County Buech, ex rel. Milwaukee In State (1920), again we construed 474, 177 N.W.781
171 Wis. powers of a sheriff. We and duties the constitutional question of whether a sheriffs dismissal addressed legislature regulated by deputy of a could through or whether the constitu- the civil service laws regulation. prohibited Id. 476. In our review that tion question presented, did not use the terms we we had in duties and functions" as "constitutional Instead, the sheriffs common law Brunst. we described constitutionally "im- were based as those "duties" that important principal duties that charac- memorial distinguished Id. at 482. We terized and the office." possessed opined at common law the that while power deputies, general power appoint was such many "peculiar other to the office of sheriff' because general appointment. power Id. officers had a also Many public had the to fire other officers also firing employees employees, not a task was so specifi- "peculiar However, we of sheriff." to the office *36 determining cally had been whether the sheriff avoided deprived power appointment of of a constitutional of legislative deputies by determined action because we qualifica- governed the that the civil service laws only regulation upon deputies a tion of were reasonable power. the Id. 482-83. sheriffs Police Ass'n In 92. Wisconsin Professional (WPPA) County Dane, Wis. 2d 316 N.W.2d of (1982) (WPPA I), a collective we addressed whether agreement bargaining and the between Dane person limit the Local 695 could Teamsters Union officer" to select as a "court the sheriff could whom upon attend the on courts behalf of the Id. at sheriff. bargaining 305. We concluded that while a collective agreement legislature may authorized the limit a power purely statutory, provides sheriffs that is "it no limiting powers basis for so the the duties of sheriff upon are which based his constitutional status." Id. at explained ¶ 93. We also in WPPA I that when analyzing power particular whether a is constitution- ally grounded, job we examine "the nature the as- signed general power job assignment." rather than the added). (emphasis explanation Id. at 312 This distin- guished analysis our IWPPA from that which we used general in Buech because in Buech we focused on power, assignment job. specific rather than on the of a " I, In we WPPA determined that 'Atten- category powers dance on the Court' inis the same running jail." inherent in the sheriff as is Id. at 313. "among principal important It is duties which may characterized the office of sheriff so that the sheriff appoints." not he as restricted to whom he Id. at 312. When a bottomed is in the sheriffs authority, bargaining by a "collective [cannot] deprive board and a union the sheriff of authority." his Id. at 313. ¶ 95. In Wisconsin Police Ass'n v. Professional (Ct. County, App.
Dane
2d 439 N.W.2d625
1989) (WPPA
appeals
IP, the court of
an
addressed
complaint against
other union
II,
In
sheriff.
WPPA
union claimed that the sheriff had
violated
collec
bargaining agreement
county by
tive
with the
contract^
ing
with
U.S.
for
Marshal's Service
the interstate
conveyance
prisoners,
assigning
rather than
a union
member to the task. Id. at 702-03. The sheriff con
transport prisoners
tended that it cost
less
with
*37
bargaining
using
it
unit
than
did
Marshal's Service
U.S.
prisoner transportation was
and because
members,
upon
the
to attend
his constitutional
within
complete
that task could
courts,
choice how
his
bargaining agreement.
by
changed
Id.
collective
a
be
began
analysis,
appeals
its
the court of
96. As it
pointed
focus on "the nature
that a court should
out
duty
light
of the sheriffs constitutional
the sheriffs
way
powers
sheriff carries out
the
which the
. .. not
explained
duty."
one of the
The court
that
the
Id. at 701.
attending upon the
duties was
sheriffs constitutional
appeals
when a
court of
said that
Id. at 707. The
court.
transports
prisoner in
of an arrest
a
execution
sheriff
part
performing
court,
the
he is
issued
warrant
duty
duty.
Id. Because the
attend
that constitutional
duty
ing upon
"characterized
the
was
that
court
distinguished
law,
office of
at common
sheriff
performing
ways
means of
his own
sheriff 'chooses
(citing
I,
2d at 314
106 Wis.
Id. at 710
WPPA
it.'"
234,
(quoting
Comm'n,
261 Wis.
Andreski v. Indus.
(1952)).
plained had a collective bar that the sheriff violated gaining agreement by assigning under officer as an an position. drug posting agent We without cover operating his within was that sheriff concluded authority peace preserve he when explained appointment. that at Id. 828. We made keeping principal peace of the "immemorial was one important law, hut common duties" "unique" necessary also it was not such explained no "is that there of sheriff. Id. the office We protect only why those should the constitution reason *38 'unique' traditional duties which were to the office of sheriff at common law."Id. at 829. "[c]itizens
¶ 98. We said that
aof
have a
right
perform
to elect a sheriff to
certain traditional
regardless
may
performed
duties
of who else
also have
reasoning,
them
common law." Id. at 824. This
right
bottomed on the
of the electors to
a
choose sheriff
carry
perform
who will
out
duties
functions tradi-
sheriff,
tional to the
office
was the foundation of our
interpretation
first
of the constitutional
role of the
(explaining
Brunst,
sheriff. See
whether the sheriff had the constitutional non-bargaining person- to utilize unit law enforcement help anticipation nel to public maintain law and order in of a anticipated
event that the sheriff would draw large people Washington County. numbers of into appeals began noting by maintaining court that law and order awas historic of the sheriff. Id. at 738. The court then used the same test as it had in WPPAII: job assigned purpose If the nature was for preserving peace, law enforcement and then the power "ways sheriff had the constitutional choose performing and means of those duties." Id. at 738-39. ¶ 100. On June 1995, we decided two cases that addressed the issue the sheriffs powers: Heitkemper Wirsing, v. 194 Wis. 2d 533 (1995) County Dep't N.W.2d770 and Brown Sheriffs Dep't Non-supervisory Employ- Brown Sheriffs (1995). Both Ass'n, 265, 533 2d N.W.2d ees Wis. firing deputy a had served in a who address cases years. specifi- many department Each case for sheriffs cally pointed sheriffs it not address the out that did deputy previously power appoint had not been a who Heitkemper, 194 Wis. 2d at sheriff. hired (concluding "the in this case is not whether issue sheriffs] [the usurp bargaining agreement can collective County, deputy"); appoint 2d Brown *39 (concluding sheriffs that the issue is whether the at 269 "power power or to dismiss extends the constitutional previously appointed deputy"). reappoint It is a not to Heitkemper important nor Brown that neither to note power County addressed, constitutional on, or the turned perform how tasks undertaken of a to decide sheriff scope constitutional of one of the sheriffs within the general power only on the duties. Both cases focused distinguish employee, power a an that did terminate law. of sheriff at common the office appellate ad- ¶ recent decision 101. In the most dressing powers sheriff, of a Dunn the constitutional App WERC, 293 Wis. 2d 2006 WI appeals reviewed several 138, the court of 718 N.W.2d bargaining agreement upon provisions in collective provisions complaint that the were of the sheriff the they illegal the constitu- face violated on their because ¶ powers Id., In3. of the office of sheriff. tional appeals analyzing of sheriff, the court the claims began two-part I and applied test we WPPA the same appeals II. It first in WPPA of continued the court by duty impacted analyzed collective the the whether prin- provision bargaining of the "immemorial was one important cipal and dis- duties that characterized Id., tinguished at law." common the office sheriff (citation omitted). may was, If it then "the sheriff ways performing duty choose the and means of the [the choice] sheriffs cannot be limited a collective bargaining agreement." Id. provisions
¶ 102. One the contract directed security provided who would be a court officer and that "delegate" power the sheriff must his that schedule person applying Id., ¶ to the clerk of courts. 3. In appeals recited, test it had the court of first noted that attending upon court was Id., ¶ the sheriff. Therefore, sheriff has the "ways constitutional performing to choose the means" duty. Citing that Id. our decision County, appeals pointed Manitowoc the court of out "[w]hen performing duties, his common law 'represents sovereignty State and he superiors county.'" (quoting Id., has no in his 827). County, Accordingly, Manitowoc 168 Wis. 2d appeals bargain- court of concluded that the collective ing agreement could not affect or whom how the sheriff security Id., ¶ selected court officers.
¶ 103.
all the
When
above cited cases are consid-
together,
apparent
types
ered
it becomes
*40
there
two
are
powers
of cases that
the
address
constitutional
and
(1)
involving
duties of the sheriff:
those
the sheriffs
perform specific
choice about
to
how
task within the
ambit of one
the
of
sheriffs constitutional duties when
entity
attempting
change
another
is
to
the sheriffs
(2)
dealing
general power
choice5 those
awith
5
See
Kennedy,
(1870) (location
26
412
jail's
Wis.
prison
of
ers is
duty
within the sheriffs
provide
constitutional
to
the
for
Wis.
'l Police Ass'n
custody
jail's
care and
of
prisoners);
the
Prof
(WPPA)
Dane,
County
v.
303,
106 Wis. 2d
316
656
N.W.2d
of
(1982) (WPPA I) (sheriffs
of a
selection
court officer falls within
l
his
duty
court);
constitutional
upon
to attend
the
Wis. Prof
314
the
to
power
such as
officials,
other elected
by
possessed
appointed employee.6
a previously
dismiss
us,
Kocken con-
the case
Sheriff
In
before
means
which to feed the
by
the choice
the
tends that
within his
jail
is embraced
the
prisoners
to care for and have
duty
power
constitutional
that at common law
He asserts
custody
jail
prisoners.
care for and have
duty
no
had the
to
person
other
his choice of
He
custody
explains
of the prisoners.
is
to
meals to prisoners
which
by
provide
the means
For
running
jail.
aspects
interwoven with other
made in
the choice Sheriff Kocken
how
example,
will save the
duty
jail prisoners
his
to feed
perform
will
$1,000,000.
It
County
provide
of Brown
people
it will give
food
prisoners
preparation;
training
mov-
thereby
prisoners,
sentence credit
participating
and it
rapidly;
care more
them out of institutional
ing
safety.
morale,
which impacts
will improve prisoner
(Ct.
699,
2d
439 N.W.2d625
County,
v. Dane
149 Wis.
Police Ass'n
1989) (WPPAII) (task
transport of prisoners
interstate
App.
duty
constitutional
is within the sheriffs
U.S. Marshal's Service
986B,
court);
168
County v. Local
Manitowoc
upon
attend
(1992) (sheriffs
819,
choice of whom
Wis. 2d
484 N.W.2d
agent
embraced within
drug
undercover
was
assign as
and Dunn
preserve
peace);
duty
sheriffs
(sheriffs
assign as
2d
choice of whom to
County, 293 Wis.
constitu
security
scope
sheriffs
officer was within
court
court).
upon
to attend
tional
Buech,
County v.
171 Wis.
See State ex rel. Milwaukee
(1920) (civil
regulate
could
service commission
¶ 106. the nature of the feeding prisoners, squarely falls within the power prisoners. sheriffs constitutional to care for the (1) way It does in the so same as: the sheriffs choice to transpor- hire the U.S. Marshal's Service for interstate prisoners tation of comes within the sheriffs constitu- (2) duty upon tional courts;7 attend the sheriffs non-bargaining personnel help choice hire unit police large event comes within the sheriffs constitu- (3) public peace;8 tional to maintain the choosing agent drug sheriffs an undercover without posting position comes within the sheriffs peace.9 maintain the
¶ 107. The Brown
Sheriff has chosen the
"ways
feeding
prisoners,
means"
and no
bargaining agreement
deprive
collective
can
the 7 WPPAII,
8 Washington County Washington County
Deputy Sheriff's
Ass'n,
(Ct.
1995).
738-39,
2dWis.
App.
N.W.2d 468
County,
Manitowoc
¶ discarding 109. The of our analysis traditional constitutional question when faced with the job whether falls within the constitutional powers permits majority and duties of the sheriff opinion contrary to reach substantive result that is to powers the constitutional explained multiple and duties of the sheriff as majority opinion is, cases. That ignores repeated teaching job our that if the falls within scope power of a constitutional of the law, sheriff at common the sheriffs choice about to how job perform regulated by to that cannot be a collective bargaining agreement.10 County, I, Manitowoc 829; at WPPA 168 Wis. 2d 312; Brunst,
106 Wis. 2d at County,, Dunn 415; majority opinion removes from the perform power certain constitutional to sheriff people sheriffs of Wisconsin elected duties that the majority opinion doing, perform. transfers In so portions non- of the sheriffs representatives members of the union elected subject the electorate. WERC, who are not review consti- From first consideration of the our impor- powers sheriff, we how of the stressed tutional from the office of sheriff the tant it was not remove people elected the sheriff to had duties that explained perform. so, were we to do we We would: right to choose a sheriff
secure the electors merely, while all the duties and substance name belong officer by and to an might office be exercised authority. by some other appointed majority opinion permits Brunst, 415. The 26 Wis. at ways persons on the to direct non-elected fulfilling employ in his sheriff can and means the *44 duty care for the run rights prisoners. impairs electorate, as This well as those of the sheriff.
III. CONCLUSION majority opinion Therefore, because the 112. years precedent so more than overturns people doing from the sheriff removes respectfully perform, I sheriff to elected the Wisconsin dissent. 10-11; Washington County, Wis. 2d at 2d ¶¶ WPPA II, 738-39; 149 Wis. 2d I am authorized to state that Justices JON join
E WILCOX and DAVIDT. PROSSER this dissent.