Petition for Writ of Certiorari — Flynn v. Kornwolf

Supreme Court, ULB.

(1) FILED

96 254 Aue 13 1996,

rFICc Ur ie CLERK

No. wre

In The

Supreme Court of the United States

October Term, 1995

.

JOAN FLYNN, ROBERT BERTERMANN, EVA

CHRISTOPHERSON, SALLY GUZEK, PAUL

ROSENQUIST, JAY WILDFONG, ED BOWMAN,

SHIRLEY DANDENEAU, BONNIE FULLER, HELEN

HESS, JOHN GRECO and JOSEPH PORCARO,

Petitioners,

VS.

DENNIS KORNWOLF and STEPHEN SIMANEK,

in their individual capacities, and RACINE COUNTY,

a municipal corporation,

Respondents.

S

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

7

PETITION FOR WRIT OF CERTIORARI

¢

EuizaseTtH ADELMAN

Counsel of Record

LYNN ADELMAN

Counsel for Petitioners

ADELMAN, ADELMAN & Murray, S.C.

308 East Juneau Avenue

Milwaukee, Wisconsin 53202

(414) 225-2920

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 442-283)

73 pp

QUESTIONS PRESENTED

1) Where state law provides that employment for a

specified duration creates a property interest and triggers

due process protections, does a court order appointing

individuals to positions as bailiffs for a specified duration

create a property interest, or must the order also include

“explicitly mandatory language” whereby the court

expressly prohibits itself from terminating the bailiffs

without cause?

2) May federal courts apply the “explicitly manda-

tory language” standard to questions regarding the cre-

ation of property interests even though this Court has

never approved the use of the standard in the property

interest context and has now rejected the standard in the

only context in which it was formerly applied, that of

prisoners’ rights?

il

TABLE OF CONTENTS

Page

OCusstions PupeeRee | oo isos 6k 50h4 dun beh eeekeneeee i

Tabbe OF CRO ica inc ic isa vex) ibe aeaa weakest ii

Table of Amtnonlek... cdi rae iv

COMUIONE TRIO oes ci char eacawsnee peebadecranad ee 1

Stahement GE Tris x 355 csc ceed 103 hho ss bk 1

Constitutional and Statutory Provisions Involved... 2

Statement OF the CARS ox cc cy ccacibscpesssesaeannses 3

Summary Of ATguWO « os oso siancsensnes es ta cancens 7

Reasons for Granting the Writ..................05. 9

I. CERTIORARI SHOULD BE GRANTED TO

MAKE CLEAR THAT THE SEVENTH CIR-

CUIT COURT OF APPEALS’ USE OF THE

“EXPLICITLY MANDATORY LANGUAGE”

STANDARD TO DETERMINE WHETHER

THE PETITIONERS HAD A PROPERTY

INTEREST IN THEIR EMPLOYMENT WAS

ERROR BECAUSE STATE LAW PROVIDES

THE SOLE REFERENCE FOR DETERMINING

SUITE INIBROCLO 60 iensa cesexedanbeusestese 9

A. This Court Has Consistently Held That

State Law Is The Sole Reference By Which

Property Interests In Employment Are To

eg ee Perr ry peer ee Pee eye 9

B. Wisconsin Law Provides That A Property

Interest In Employment Exists Where The

Employment Is For A Specified Duration .. 10

C. There Is No Requirement In Wisconsin

Law That Language Creating A Property

Interest In Employment Must, In Addition

To Specifying The Duration Of Employ-

ment, Contain “Explicitly Mandatory Lan-

QURRS wc cick uoccavnceesdasedaePeeenenn’ 12

TABLE OF CONTENTS - Continued

Page

D. The Seventh Circuit Court Of Appeals

Refused To Follow State Law To Deter-

mine Whether The Petitioners Had A

Property Interest In Their Employment ..

Il. CERTIORARI SHOULD BE GRANTED TO

MAKE CLEAR THAT THE “EXPLICITLY

MANDATORY LANGUAGE” STANDARD,

WHICH THIS COURT HAS NEVER

APPROVED IN THE PROPERTY INTEREST

CONTEXT, AND HAS RECENTLY REJECTED

IN THE PRISONERS’ RIGHTS CONTEXT,

SHOULD NOT BE USED BY FEDERAL

COURTS TO DETERMINE WHETHER A

PROPERTY INTEREST EXISTS...............

EE <. coc haa is oh hb op ha'ne'ed ae cGeat oSKss

14

iv

TABLE OF AUTHORITIES

Page

CASES

Federal

Bishop v. Wood, 426 U.S. 341 (1976)..............0005. 9

Board of Regents v. Roth, 408 U.S. 564 (1972).......... 9

Cleveland Board of Education v. Loudermill, 470 U.S.

Dae ROOOOE cvs he b04 4a Cow ake as Capea keene Kes. 9, 10

Fittshur v. Village of Menomonee Falls, 31 F.3d 1401

(FU SE FROG ik ances ce aeeaaw tener ecdaseiaaeeess 16

Hewitt v. Helms, 459 U.S. 460 (1983).............. 16, 17

Jago v. Van Curen, 454 U.S. 14 (1981)................ 18

Kentucky Dept. of Corrections v. Thompson, 490 U.S.

GOR CRD 60 vk bab es AA Wee nek cLe ROR SUERTE Vhs 16

Listenbee v. City of Milwaukee, 976 F.2d 348 (7th Cir.

ROI 56 Kes Ee ic ain in ee eS VA re aia 16

Miller v. Crystal Lake Park Dist., 47 F.3d 865 (7th

Ce 2OGOP Knccinkcaivaaes eee eee reece 16, 17

Sandin v. Conner, 115 S. Ct. 2293 (1995) .......... 13, 19

State

Brockmeyer v. Dun & Bradstreet, 335 N.W.2d 834

ee PE ere rr Seer) errr 10, 13

Casteel v. McCaughtry, 500 N.W.2d 277 (Wis. 1993) .... 13

Heinritz v. Lawrence University, 535 N.W.2d 81

(Whe. CR: aes. RIGS) vis v0 ha vines Fees ses cwtvane 10, 13

In re Guardianship of Eberhardy, 307 N.W.2d 881

CUUND: TORN oaks Packs see pbavakesk aun een eneaasebnus 12

TABLE OF AUTHORITIES —- Continued

Page

Irby v. Macht, 522 N.W.2d 9 (Wis. Ct. App. 1991) .... 13

Larson v. City of Tomah, 532 N.W.2d 726 (Wis.

Scho kebtave ued Obes be oe eee bee ke 10, 13

Stevenson v. Milwaukee County, 121 N.W. 654 (Wis.

Res Ged & ute Bae Sea ab ares oko SEE Ce we os ce a 11

Vorwald v. School Dist. of River Falls, 482 N.W.2d 93

(Wis. 1992), cert. denied, 506 U.S. 941 (1992) .. 10, 11, 13

Wandry v. Bull’s Eye Credit Union, 384 N.W.2d 325

Baers Seng errr ere ee 10, 13

Wisconsin ex rel. Friedrich v. Cir. Ct. of Dane County,

en EUAUUGE. ee CUT ROWE) s fib vcd shwaeeasiueneds 12

Yoder v. Palmeri, 502 N.W.2d 903 (Wis. Ct. App.

SPOOEs santana soeennn vd hevesuticcnessesieeeneras 13

CONSTITUTIONAL PROVISIONS

State

oe ee eS Perea err err er 2 mere 2. an

MISCELLANEOUS

Lawrence E. Blades, Employment at Will vs. Individ-

ual Freedom: On Limiting the Abusive Exercise of

Employer Power, 67 Colum. L. Rev. 1404 (1967) .... 11

PETITION FOR WRIT OF CERTIORARI

The Petitioners, Joan Flynn, Robert Bertermann, Eva

Christopherson, Sally Guzek, Paul Rosenquist, Jay Wild-

fong, Ed Bowman, Shirley Dandeneau, Bonnie Fuller,

Helen Hess, John Greco and Joseph Porcaro, herein pray

that the United States Supreme Court grant a Writ of

Certiorari to review the opinion and judgment of the

Seventh Circuit Court of Appeals in this matter, entered

May 15, 1996.

OPINIONS BELOW

The May 15, 1996, opinion of the Seventh Circuit

Court of Appeals, whose judgment is herein sought to be

reviewed, is reported at 83 F.3d 924, and is reprinted in

the separate Appendix to this Petition, pp. 1-7. The prior

opinion of the United States District Court for the Eastern

District of Wisconsin, entered and dated June 1, 1995,

bears Case No. 94-C-0908 and is unpublished, but is

reprinted in the separate Appendix to this Petition, pp.

8-17.

STATEMENT OF JURISDICTION

The judgment of the Seventh Circuit Court of

Appeals was entered on May 15, 1996. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

¢

U.S.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Const. amend. XIV, § 1.

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

42 U.S.C. § 1983.

Wis.

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the

purpose of this section, any Act of Congress

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.

Const. art. VII, § 8.

Circuit court: jurisdiction. Except as otherwise

provided by law, the circuit court shall have

original jurisdiction in all matters civil and crim-

inal within this state and such appellate jurisdic-

tion in the circuit as the legislature may

f

prescribe by law. The circuit court may issue all

writs necessary in aid of its jurisdiction.

Wis. Stat. § 753.10(3) (1991-1992).

Attendance of officers, pay; opening court. (3)

Unless otherwise directed by the presiding

judge, no officer, other than the clerk, shall be

paid for attending court or the judge if the court

is not engaged in the trial of jury cases. Every

officer attending court upon the order of the

presiding judge shall have the same powers and

authority as the sheriff, and shall be paid out of

the County treasury, upon the certificate of the

judge, compensation equal to that fixed by the

County board. No such officer may be paid for

any day when the court is not in session unless

specially ordered by the presiding judge.

*

STATEMENT OF THE CASE

Beginning in May of 1991, Racine County Circuit

Court judges instituted a practice of issuing serial court

orders appointing certain individuals, the Petitioners

among them, to employment as bailiffs. The Clerk of

Courts, who had formerly appointed such individuals,

notified the bailiffs of this change in procedure.

Each of the appointing orders contained a specified

duration in which the order would be in effect. The first

order was dated May 15, 1991, and was to be “effective

for a period of sixty (60) day (sic) from the date of

signature.” (App. 20.) The second order was “effective

immediately this date, December 19, 1991 and shall

expire January 31, 1993.” (App. 23.) The third order was

signed by each of the nine county judges in March of

1993, and stated, “[t]his order expires on 12-31-93.” (App.

25.)

In 1992, Racine County officials were notified that the

county had failed to provide pension benefits to the

Wisconsin Retirement System on the bailiffs’ behalf. Wis-

consin law required that all employees working more

than 600 hours for those municipalities opting into the

system must be included in the system. Wis. Stat.

§ 40.22(2m) (1991-1992). Although they were part-time

employees, the bailiffs had each worked in excess of 600

hours per year prior to 1992.

In the summer of 1992, Respondent, Racine County

Executive Dennis Kornwolf, decided that the Petitioners

should be laid off to prevent them from obtaining pen-

sion coverage for 1992. (By August of 1992 most of the

bailiffs had not yet worked 600 hours.) In August of 1992,

Respondent, Chief Judge Stephen Simanek, working with

Kornwolf, placed newspaper advertisements in local

newspapers seeking replacements for the bailiffs. (App.

36.) Subsequently, the Respondents hired replacements

for the Petitioners.

Notwithstanding that the court order specifying that

the Petitioners were employed until January 31, 1993,

remained in effect, Kornwolf, in September of 1992, laid

off the Petitioners. Kornwolf undertook these layoffs

despite the bailiffs having offered to work for less pay in

order to keep their jobs (App. 37), and despite the Racine

County Corporation Counsel having advised that the lay-

offs were illegal.

The bailiffs sought unemployment benefits, which

the county opposed. In a strongly-worded decision, an

administrative law judge awarded the bailiffs unemploy-

ment benefits. (App. 38-42.) The county subsequently

recalled the bailiffs in January of 1993, renaming them

“court attendants.”

To keep the court attendants’ hours below 600 per

year, the county retained the replacement workers it had

hired in September of 1992, and instituted a practice of

assigning only one court attendant per jury rather than

the former practice of two. Because of the resulting

reduction in hours of available work, two court atten-

dants were forced to retire. They applied for and received

pension benefits.

At some point thereafter, Kornwolf and Simanek

decided to terminate the court attendants’ employment

and replace them with Kelly Temporary Service

employees. In May of 1993, Simanek terminated the court

attendants. He also notified them that if they wished to

apply to the Kelly Temporary Service, they would be

assigned to the courthouse and would perform the same

duties they had previously performed as county

employees.

The cost to Racine County, per hour, to employ the

part-time court attendants was $6.54 without pension,

and $6.90 with pension. The cost to Racine County, per

hour, to appoint Kelly Temporary Service employees to

the same position was $7.20 per employee.

Following their termination, the Petitioners filed suit

in the United States District Court for the Eastern District

of Wisconsin, invoking the court's jurisdiction under 28

U.S.C. §§ 1331 and 1343(a)(4). In their Amended Com-

plaint, the Petitioners claimed, inter alia, that their Sep-

tember 1992 layoff and May 1993 termination, without

notice or hearing in either instance, deprived them of

constitutionally protected rights in violation of 42 U.S.C.

§ 1983 and the Fourteenth Amendment to the United

States Constitution. (App. 33-34.) In response, the

Respondents moved to dismiss the Amended Complaint

contending that the Petitioners lacked a property interest

from which they could claim a right to due process.

The district court dismissed the complaint holding

that the court order did not create a property interest.

(App. 14-15.) The Petitioners appealed to the Seventh

Circuit Court of Appeals, invoking the court's jurisdic-

tion under 28 U.S.C. § 1291. The court of appeals

acknowledged that the court order was for a specified

duration (App. 6), but held that it, nevertheless, did not

create a property interest because “[n]owhere does the

order state in ‘explicitly mandatory language’ that the

appointing judges have limited discretion to terminate

the plaintiffs’ employment at the judges’ will.” (App.

6-7.) The court of appeals went on to hold that “the mere

fact that the plaintiffs allegedly relied on the order as

guaranteeing their employment until the order expired

was not sufficient to create a property interest that would

trigger due process protections.” (App. 7.)

e

SUMMARY OF ARGUMENT

There are several critical reasons why this Court

should grant the Petition and review this case. The Sev-

enth Circuit Court of Appeals ignored the decisions of

this Court in at least two important areas.

First, this Court’s decisions have established that

property interests in employment are determined solely

by reference to state law. This is an important doctrine

because it represents this Court’s adherence to the funda-

mental principles of federalism which underlie our con-

stitutional jurisprudence.

Wisconsin law provides that a property interest in

employment exists where the employment is for a speci-

fied duration. Such employment is terminable only for

cause.

The Seventh Circuit Court of Appeals ignored Wis-

consin law. If the court had looked to Wisconsin law it

would have had to conclude that a court order creating

employment for a specified duration creates a property

interest and triggers due process protections. Instead, the

court of appeals imposed a requirement which does not

exist in Wisconsin employment law, namely that the court

order include “explicitly mandatory language” in addi-

tion to the appointing judges’ clear statement that the

bailiffs were to be employed for a specified duration of

time.

The court of appeals’ decision that a clear and unam-

biguous court order creating employment for a specified

duration cannot be relied on unless the court includes

language expressly prohibiting itself from violating the

terms of the order is unreasonable. Inasmuch as court

orders are, in fact, a form of law, the decision of the

Seventh Circuit Court of Appeals suggests that courts are

above the law. The decision, therefore, undermines both

the rule of law and the integrity of the judiciary.

Secondly, the use by the Seventh Circuit Court of

Appeals of the “explicitly mandatory language” standard

was error for another reason. This Court has never

applied the standard to the question of whether a docu-

ment creates a property interest in employment. Indeed,

this Court has recently rejected the “explicitly mandatory

language” standard as inappropriate even in the only

context in which this Court has ever applied it, that of

prisoners’ rights.

It is important that this Court make clear to the

federal judiciary that the “explicitly mandatory lan-

guage” standard is not the appropriate test for determin-

ing whether a property interest in employment exists.

¢

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO MAKE

CLEAR THAT THE SEVENTH CIRCUIT COURT OF

APPEALS’ USE OF THE “EXPLICITLY MANDA-

TORY LANGUAGE” STANDARD TO DETERMINE

WHETHER THE PETITIONERS HAD A PROPERTY

INTEREST IN THEIR EMPLOYMENT WAS ERROR

BECAUSE STATE LAW PROVIDES THE SOLE REF-

ERENCE FOR DETERMINING SUCH INTERESTS.

A. This Court Has Consistently Held That State

Law Is The Sole Reference By Which Property

Interests In Employment Are To Be Deter-

mined.

In Board of Regents v. Roth, 408 U.S. 564, 577 (1972),

this Court stated:

Property interests . . . are not created by the

Constitution. Rather, they are created and their

dimensions are defined by existing rules or

understandings that stem from an independent

source such as state law - rules or understand-

ings that secure certain benefits and that sup-

port claims of entitlement to those benefits.

In Bishop v. Wood, 426 U.S. 341, 344 (1976), this Court

again stated that when seeking to determine the existence

of a property interest in employment, “the sufficiency of

the claim of entitlement must be decided by reference to

state law.”

And, in Cleveland Board of Education v. Loudermill, 470

U.S. 532 (1985), this Court held that although the degree

of due process required before one can be deprived of a

property interest in employment is governed by the Con-

stitution once such an interest is found to exist, it is state

10

law that determines whether such an interest exists in the

first place. See id. at 538, 541. In other words, in the

context of property interests in employment, the state

determines whether process is due while the Constitution

determines how much process is required.

B. Wisconsin Law Provides That A Property Inter-

est In Employment Exists Where The Employ-

ment Is For A Specified Duration.

Wisconsin law provides that if employment is not at-

will, a property interest exists in that employment. Vor-

wald v. School Dist. of River Falls, 482 N.W.2d 93, 96 (Wis.

1992), cert. denied, 506 U.S. 941 (1992). Wisconsin law

further provides that-where employment is for a specified

duration, it is not employment at will. Larson v. City of

Tomah, 532 N.W.2d 726, 729 n.7 (Wis. 1995) (“An

employee-at-will is one who is hired for an indefinite

period of time and who may be discharged without

cause.”); Heinritz v. Lawrence University, 535 N.W.2d 81, 83

(Wis. Ct. App. 1995) (“Employees hired for an indefinite

term without a formal written contract are employees-at-

will.”); Wandry v. Bull's Eye Credit Union, 384 N.W.2d 325,

326 (Wis. 1986) (“an employee hired for an indefinite

period is dischargeable at the will of the employer”);

Brockmeyer v. Dun & Bradstreet, 335 N.W.2d 834, 837 (Wis.

1983) (“The [employment at will] doctrine recognized

that where an employment was for an indefinite term, an

employer may discharge an employee ‘for good cause, for

no cause, or even for cause morally wrong, without being

thereby guilty of legal wrong.’ ” (quoting Lawrence E.

11

Blades, Employment at Will vs. Individual Freedom: On Lim-

iting the Abusive Exercise of Employer Power, 67 Colum. L.

Rev. 1404, 1405 (1967))).

In Vorwald v. School Dist. of River Falls, supra, the court

restated the traditional doctrine that employment at will

is the rule unless “civil service regulations or laws, or a

contract or collective bargaining agreement” create an

exception. Id., 482 N.W.2d at 96. The context in which the

court made this statement makes clear that the court did

not intend to exclude court orders as potential sources of

property interests. The court was merely identifying the

more typical kinds of documents which create property

rights in employment. The court made clear later in the

opinion that a variety of documents could create property

interests and cited as examples employee handbooks and

personnel policies. Id.

The creation of a property interest under Wisconsin

employment law does not depend on the form of the

document establishing the employment relationship but

on whether the document states that the employment is

for a specified duration. The opinion of the Seventh Cir-

cuit Court of Appeals was correct to the extent that it

recognized that under Wisconsin law a court order could

be the source of a property interest in employment.

Indeed, court orders are recognized as independent

sources of law in Wisconsin. Circuit courts are constitu-

tionally empowered to make such orders as are necessary

to aid them in their jurisdiction. See Wis. Const. art. VII,

§ 8; see also Stevenson v. Milwaukee County, 121 N.W. 654,

656 (Wis. 1909) (“The power to appoint necessary atten-

dants upon the court is inherent in the court in order to

12

enable it to properly perform the duties delegated to it by

the constitution.”); Wisconsin ex rel. Friedrich v. Cir. Ct. of

Dane County, 531 N.W.2d 32, 37 (Wis. 1995) (“In addition

to the powers expressly granted to the courts under the

constitution, courts have inherent, implied and incidental

powers.”); In re Guardianship of Eberhardy, 307 N.W.2d 881,

886 (Wis. 1981) (“Unlike the relationship between the

Congress and the federal courts, under which the Con-

gress may grant or withhold jurisdiction as it pleases, in

Wisconsin the jurisdiction and the power of the circuit

court is conferred not by act of the legislature, but by the

Constitution itself.”).

Thus, under Wisconsin law, a court order employing

court personnel is an example of judges exercising inher-

ent power under the state constitution. Such an order is

accorded no less respect than a legislative enactment. The

Petitioners in this case were entitled to rely on this court

order. Because the order stated that their employment

was for a specified duration, under Wisconsin law, it gave

the Petitioners a property interest in their employment.

C. There Is No Requirement In Wisconsin Law

That Language Creating A Property Interest In

Employment Must, In Addition To Specifying

The Duration Of Employment, Contain “Explic-

itly Mandatory Language.”

Neither the Wisconsin Supreme Court nor any Wis-

consin appellate court has ever used the “explicitly man-

datory language” standard to determine whether a

document creates a property interest in employment. The

“explicitly mandatory language” standard is simply not a

13

part of Wisconsin employment law. As discussed above, a

property interest in employment arises in Wisconsin if

the employment is terminable for cause. See Vorwald, 482

N.W.2d at 96. Under Wisconsin law, a document creating

employment for a specified duration is regarded as being,

in itself, sufficiently explicit to justify the employee’s

reliance on it. See generally Larson v. City of Tomah, 532

N.W.2d at 729 n.7; Heinritz v. Lawrence University, 535

N.W.2d at 83; Wandry v. Bull's Eye Credit Union, 384

N.W.2d at 326; Brockmeyer v. Dun & Bradstreet, 335 N.W.2d

at 837.

The only mention of the “explicitly mandatory lan-

guage” standard in Wisconsin case law is in the context

for which the standard was created — the determination of

inmates’ liberty interests in prisoners’ rights cases.! See,

e.g., Casteel v. McCaughtry, 500 N.W.2d 277 (Wis. 1993)

(applying standard to prison regulations to resolve

inmate’s liberty interest claim); Yoder v. Palmeri, 502

N.W.2d 903 (Wis. Ct. App. 1993) (applying standard to

prison regulations to resolve inmate’s liberty interest

claim); Irby v. Macht, 522 N.W.2d 9 (Wis. Ct. App. 1991)

(applying standard to prison regulations to resolve

inmate’s liberty interest claim). Simply put, the standard

which the Seventh Circuit Court of Appeals used to deny

the Petitioners’ property interest in their employment is

not part of Wisconsin employment law.

1 As will be discussed in Part II, infra, this Court’s decision

in Sandin v. Conner, 115 S. Ct. 2293 (1995), rejected the “explicitly

mandatory language” standard even for application to liberty

interest questions in prisoners’ rights cases.

14

D. The Seventh Circuit Court Of Appeals Refused

To Follow State Law To Determine Whether

The Petitioners Had A Property Interest In

Their Employment.

The Seventh Circuit Court of Appeals began its anal-

ysis of the Petitioners’ property interest claims with the

following correct statement of the law:

If the plaintiffs had property rights in their

employment, the defendants could not deprive

them of those rights without adequate due pro-

cess. Whether the plaintiffs had a substantive

property interest in their jobs is a question of

state law. The relevant inquiry under Wisconsin

law turns on whether the employment is at-will.

Employment at will, in which the employee has

no property interest, is the rule. On the other

hand, an employee terminable only for cause

has a property interest in his employment.

App. at 3-4 (citations omitted).

The court then went on to ignore state law. The court |

said:

Although the court order appointing them to

their positions did contain an expiration date, it

“place[d] no substantive restriction on the

County’s [or the appointing judges’] authority

to terminate” the plaintiffs before it expired.

Nowhere does the order state in “explicitly

mandatory language” that the appointing

judges have limited discretion to terminate the

plaintiffs’ employment at the judges’ will.

Absent such language, the mere fact that the

plaintiffs allegedly relied on the order as guar-

anteeing their employment until the order

expired was not sufficient to create a property

15

interest that would trigger due process protec-

tions.

Id. at 6-7 (alterations in original).

The “explicitly mandatory language” standard does

not exist in Wisconsin employment law. By using this

standard the Seventh Circuit Court of Appeals clearly

violated this Court’s repeated and unambiguous state-

ments that the question of whether a property interest in

employment is created is determined solely by reference

to state law.

Moreover, the Seventh Circuit Court of Appeals’ use

of this standard in connection with the facts of this case is

bizarre. The document creating the property interest in

this case was an unambiguous court order specifying that

the Petitioners were to be employed as bailiffs for a

specified duration of time. To hold that the Petitioners

could not rely on this court order because the order did

not include language making it “explicitly mandatory” is

unreasonable. What must the court order say? That the

court forbids itself from revoking the order? No court

would ever use such language. It was bad enough for

nine Racine County judges to ignore their own order.

Since then two federal courts have held that, notwith-

standing its clear language, the order meant nothing. This

Court must hear this case if for no other reason than to

vindicate the integrity of the judiciary.

16

II. CERTIORARI SHOULD BE GRANTED TO MAKE

CLEAR THAT THE “EXPLICITLY MANDATORY

LANGUAGE” STANDARD, WHICH THIS COURT

HAS NEVER APPROVED IN THE PROPERTY

INTEREST CONTEXT, AND HAS RECENTLY

REJECTED IN THE PRISONERS’ RIGHTS CON-

TEXT, SHOULD NOT BE USED BY FEDERAL

COURTS TO DETERMINE WHETHER A PROP-

ERTY INTEREST EXISTS.

For the past several years, the Seventh Circuit Court

of Appeals has been using the “explicitly mandatory

language” standard to determine the existence of prop-

erty interests in employment. See, e.g., Miller v. Crystal

Lake Park Dist., 47 F.3d 865, 867 (7th Cir. 1995); Fittshur v.

Village of Menomonee Falls, 31 F.3d 1401, 1406 (7th Cir.

1994); Listenbee v. City of Milwaukee, 976 F.2d 348, 353 (7th

Cir. 1992). The use of this standard in this context is a

practice which this Court has never approved and which

it should now expressly disapprove.

The “explicitly mandatory language” standard was

first used by this Court in Hewitt v. Helms, 459 U.S. 460

(1983), and reiterated in Kentucky Dept. of Corrections v.

Thompson, 490 U.S. 454 (1989). Neither Hewitt nor

Thompson, however, involved the question of how an

individual gained a property interest in his or her job.

Both cases dealt with the issue of when a prison inmate

had a liberty interest. In Thompson, for example, the ques-

tion was whether suspension of a prisoner’s visitation

privileges implicated a liberty interest which entitled the

prisoner to due process protections. Id., 490 U.S. at 455.

This Court has never cited Hewitt or Thompson as

relevant authority where the question was whether an

os sl 2

Fi

£)

il

'

i tadelenitk iehdan dienes aeece ie

ee

eta tes

17

employee had a property interest in his or her job. More-

over, it is extremely difficult to understand how the

“explicitly mandatory language” standard can be reason-

ably applied in the context of a property interest ques-

tion. In the context of a prison situation where the

security of the prison is obviously a very important

value, it is clear how the “explicitly mandatory language”

standard could serve a useful function. In a prison con-

text it is extremely important that prison authorities have

the power to maintain discipline and order. It was under-

standable that this Court would hold in Hewitt and

Thompson that a prisoner claiming that he or she has an

interest which requires the protections of the Due Process

Clause (a “liberty” interest) meet the highest possible

standard.

When the issue does not involve the rights of prison

inmates but rather the question of whether a document -

whether it be a statute, contract, personnel policy or court

order — conveys a property interest, it is not at all clear

what purpose the “explicitly mandatory language” stan-

dard serves. The Seventh Circuit Court of Appeals has

never justified, explained, or even acknowledged that it

imported the “explicitly mandatory language” standard

from the prison context to the property interest context.

The Petitioners are not the first to question the appli-

cation of the “explicitly mandatory language” standard to

property interest questions. In his dissenting opinion in

Miller v. Crystai Lake Park Dist., supra, Judge Cudahy

stated:

The majority cites Thompson’s requirement

of “explicitly mandatory language” in statutes

or regulations to establish a legitimate claim of

18

entitlement. But Thompson offers little help,

because it concerned a liberty interest in a

prison context, and that analysis can differ con-

siderably from the treatment of property inter-

ests, especially those arising in non-prison

settings.

Id., 47 F.3d at 870 (Cudahy, J., dissenting) (citing Jago v.

Van Curen, 454 U.S. 14, 18 (1981)).

The Seventh Circuit Court of Appeals’ use of the

“explicitly mandatory language” standard in property

interest cases is harmful in a number of ways. First, it

conflicts with this Court’s jurisprudence that state law

determines property interests. Secondly, it represents the

imposition, unauthorized by this Court, of a federally

created standard upon state law the effect of which is to

undermine state law. It is particularly troublesome that

the Seventh Circuit Court of Appeals imported the stan-

dard from an entirely different context (prisoners’ rights)

without explanation or justification. :

Third, the use of the “explicitly mandatory language”

standard in property interest cases thwarts the creation of

a property interest even when the words of a document

clearly create one. It prevents individuals from relying on

unambiguous written promises. The use of the “explicitly

mandatory language” standard in the property interest

context leads to results which are unjust and, sometimes,

absurd. It is unjust and absurd for a court to hold that a

court order cannot be relied on unless it contains lan-

guage stating that everything stated in the order is man-

datory. Court orders are by definition mandatory.

Finally, it is both important and ironic that this Court

has recently rejected the “explicitly mandatory language”

19

standard in the only context in which it ever applied, that

of prisoners’ rights. In Sandin v. Conner, 115 S. Ct. 2293

(1995), this Court found that prisoners were using the

“explicitly mandatory language” standard to seek to

extend prisoners’ rights beyond those required to protect

against hardships atypical to the prison environment. Id.

at 2300. The Court determined that the standard was no

longer appropriate to use to determine liberty interests of

inmates. Id.

Thus, the Seventh Circuit Court of Appeals is using a

standard to dismiss property interest cases that was

never intended to be used in such situations, and that has

now been rejected by this Court in the only situation in

which it was previously applied. This Court should grant

the requested Writ to make clear that the “explicitly man-

datory language” standard does not apply to questions of

property interests in employment. In Sandin, this Court

rejected the standard in the prison context because it was

difficult to apply and tended to produce anomalous

results. Id. at 2300 n.5. The case at bar shows that use of

this standard in the employment law context produces

even more anomalous results.

CONCLUSION

This case raises important questions of federalism

and judicial integrity. Without resolution of these ques-

tions, federal courts in the Seventh Circuit and possibly

in other circuits will continue to undermine state law and

impose a defunct federal standard in cases in which it

ii

20

was never intended to be applied. The Petitioners there-

fore respectfully pray that this Court grant the Writ of

Certiorari they request, so that these questions may be

resolved.

Respectfully submitted,

EvizABETH ADELMAN

Counsel of Record

LYNN ADELMAN

Counsel for Petitioners

ADELMAN, ADELMAN & Murray, S.C.

308 East Juneau Avenue

Milwaukee, Wisconsin 53202

(414) 225-2920

App. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 95-2592

JOAN FLYNN, Rosert BERTERMANN,

Eva CHRISTOPHERSON, et al.,

Plaintiffs-Appellants,

v.

DENNIS KORNWOLE, STEPHEN A. SIMANEK,

in their individual capacities and

Racine County, a municipal corporation,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 94 C 908 - John W. Reynolds, Judge.

ArGueD Decemser 4, 1995 — Decipep May 15, 1996

Before Bauer, Diane P. Woop and Evans, Circuit

Judges.

Bauer, Circuit Judge. The plaintiffs, former part-time

bailiffs in Racine County, Wisconsin, brought suit under

42 U.S.C. § 1983, claiming t! at the defendants violated

their due process rights by demoting them and terminat-

ing their employment without cause. The district court

granted the defendants’ motions to dismiss. We affirm.

App. 2

BACKGROUND

We accept as true the facts alleged in the plaintiffs’

complaint. Travel All Over the World, Inc. v. Kingdom of

Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996). The plain-

tiffs worked as part-time bailiffs in Racine County. Their

duties primarily involved the care and custody of jurors.

Before 1992, they worked more than 600 hours per year.

In the summer of 1992, Dennis Kornwolf, the county

executive, and Stephen Simanek, a Racine County circuit

court judge and the chief judge of the state’s Judicial

District Il, realized that any county employee who

worked more than 600 hours per year became entitled to

pension benefits from the Wisconsin Retirement System.

To save the county the expense of paying $.36 per hour

for the plaintiffs’ pension benefits, Kornwolf and Sim-

anek decided to fire the plaintiffs and replace them with

bailiffs who would work less than 600 hours per year. In

September 1992, Kornwolf laid off the plaintiffs, despite

their willingness to pay for their own pension benefits in

order to keep their jobs.

In January 1993, the county rehired most of the plain-

tiffs as “court attendants” rather than “bailiffs.” The

plaintiffs viewed this as a demotion. Two months later,

the Racine County circuit court judges signed an “order

appointing court attendants” through the end of the year.

The order limited the court attendants’ work to 599 hours

per year. Although the plaintiffs worked fewer hours

than before, they alleged that they actually did more

work as a result of a new county policy assigning one

bailiff per jury rather than two. Because of this policy and

other changes in the conditions of their employment,

several plaintiffs quit their jobs. Despite the County’s

App. 3

opposition, those plaintiffs applied for and received pen-

sion benefits. In May 1993, Simanek told those plaintiffs

still employed as court attendants that they would be

discharged and rehired as Kelly Temporary Services

employees.

In August 1994, the plaintiffs filed this suit pursuant

to 42 U.S.C. § 1983, alleging that Simanek and Kornwolf,

acting in their individual capacities, demoted the plain-

tiffs and terminated their employment without cause,

notice, or a hearing in violation of Wisconsin laws setting

forth employment rules for county civil service. See Wis.

Stat. §§ 63.01 to 63.17. The plaintiffs contended that Sim-

anek and Kornwolf thus deprived them of their constitu-

tional right to due process under the Fourteenth

Amendment. The plaintiffs also sued Racine County,

claiming that it violated their due process rights by

excluding them from civil service protections against

demotion or termination without cause, notice, or a hear-

ing. The district court granted the defendants’ motions to

dismiss because the plaintiffs failed to state a due process

property interest in their employment, and therefore

failed to show any violation of their constitutional or civil

rights. We review de novo the district court’s dismissal for

failure to state a claim. Warzon v. Drew, 60 F.3d 1234, 1238

(7th Cir. 1995).

ANALYSIS

I. Property Interest

If the plaintiffs had property rights in their employ-

ment, the defendants could not deprive them of those

App. 4

rights without adequate due process. See Fittshur v. Vil-

lage of Menomonee Falls, 31 F.3d 1401, 1405 (7th Cir. 1994),

citing Cleveland Board of Education v. Loudermill, 470 U.S.

532, 541 (1985). See also Board of Regents v. Roth, 408 U.S.

564, 576-77 (1972). Whether the plaintiffs had a substan-

tive property interest in their jobs is a question of state

law. Fittshur, 31 F.3d at 1405. The relevant inquiry under

Wisconsin law turns on whether the employment is at-

will. Id; Listenbee v. City of Milwaukee, 976 F.2d 348, 351

(7th Cir. 1992). Employment at will, in which the

employee has no property interest, is the rule. Warzon, 60

F.3d at 1240. On the other hand, an employee terminable

only for cause has a property interest in his employment.

See Listenbee, 976 F.2d at 351.

a. Racine County Ordinance

The plaintiffs first assert that they were civil servants

terminable only for cause because Racine County inad-

vertently extended civil service coverage to all county

employees by passing an overbroad county ordinance,

Racine County Code §§ 17-1 et seq. Generally, once a

county establishes a civil service commission, the county

must give civil service protections to all county

employees. See Wis. Stat. § 63.03(1). However, a county

may establish a civil service commission for the selection

of deputy sheriffs and limit civil service protections to

deputy sheriffs. See Wis. Stat. § 59.21(8) (providing that if

a civil service commission is decided upon for the selec-

tion of deputy sheriffs, the general rule requiring univer-

sal civil service coverage for county employees does not

apply). The plaintiffs contend that Racine County Code

§ 17-21, by establishing a civil service commission for the

App. 5

sheriff’s department, rather than just for the deputy sher-

iffs, extended civil service coverage to all county

employees.

This argument fails for several reasons. First, it is

inconsistent with a plain reading of Racine County Code

§ 17-21, which establishes a civil service commission for

the sheriff's department “pursuant to W.S.A. §§ 59.21 and

63.01 et seq.” As we already have noted, section 59.21(8)

allows counties to create civil service commissions but

limit civil service coverage to deputy sheriffs. The ordi-

nance’s reference to section 59.21 indicates that the

county intended to limit civil service protections to dep-

uty sheriffs.

Furthermore, the ordinance’s repeated references to

the position of deputy sheriff show that it extended civil

service protections only to deputy sheriffs. For example,

the ordinance requires that each member of the civil

service commission be “highly knowledgeable of the

duties and responsibilities of the deputy sheriff position,”

and “familiar with the important qualifications needed to

become a successful deputy.” Similarly, those sections of

the ordinance addressing the application process and

requirements for covered positions, as well as the prepa-

ration of and hiring from the eligibility list, all refer to the

position of deputy sheriff. Nowhere does the ordinance

state that all department employees, let alone all county

employees, are covered by its civil service protections. In

short, the mere fact that the ordinance uses the word

“department” does not convert it into a county-wide civil

service provision.

App. 6

b. Court Order

Next, the plaintiffs contend that the March 1993 court

order appointing them court attendants gave them a

property interest in their employment. The order lists the

plaintiffs’ names, defines their authority, and states that

the order expires on December 31, 1993. The plaintiffs

argue that the order appointed them for a definite term,

and therefore they had a “legally enforceable expectancy”

in their employment and could be terminated only for

cause.

The Wisconsin Supreme Court has held that “[ajbsent

civil service regulations or laws, or a contract or collec-

tive bargaining agreement, a [public] employee is an

employee at will and has no property interest in employ-

ment.” Vorwald v. School Dist. of River Falls, 167 Wis.2d

549, 557, 482 N.W.2d 93, 96, cert. denied, 506 U.S. 941

(1992). The plaintiffs contend that, like civil service regu-

lations or laws, or contracts or collective bargaining

agreements, the court order appointing them abrogated

Wisconsin's general rule of at-will employment and made

their employment terminable only for cause. They assert

that the order gave them a “legitimate claim of entitle-

ment” to their employment during its effective dates, and

that they therefore had a property interest in their jobs.

The plaintiffs’ argument fails. Although the court

order appointing them to their positions did contain an

expiration date, it “place[d] no substantive restriction on

the county’s [or the appointing judges’] authority to ter-

minate” the plaintiffs before it expired. See Warzon, 60

F.3d at 1240. Nowhere does the order state in “explicitly

mandatory language” that the appointing judges have

App. 7

limited discretion to terminate the plaintiffs’ employment

at the judges’ will. See Fittshur, 31 F.3d at 1406. Absent

such language, the mere fact that the plaintiffs allegedly

relied on the order as guaranteeing their employment

until the order expired was not sufficient to create a

property interest that would trigger due process protec-

tions.

Because neither Racine County Ordinance § 17-1 et

seq. nor the court order gave the plaintiffs a property

interest in their employment, the defendants were free to

terminate them “whenever and for whatever reasons

[they] so desire[d].” Wilcox v. Niagara of Wisconsin Paper

Corp., 965 F.2d 355, 358 (7th Cir. 1992). The district court

properly dismissed the plaintiffs’ complaint for failure to

state a claim.!

CONCLUSION

For the foregoing reasons, we affirm the judgment of

the district court.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

1 Because we affirm the district court’s dismissal, we need

not address the plaintiffs’ argument that the district court

abused its discretion in staying all discovery pending resolution

of the defendants’ motions to dismiss.

App. 8

Copy mailed to attorneys for

parties by the Court pursuant

to Fed. R. Civ. P.77(d). 6-1-95

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

JOAN FLYNN, ROBERT

BERTERMANN, EVA

CHRISTOPHERSON, SALLY

GUZEK, PAUL ROSENQUIST, JAY

WILDFONG, ED BOWMAN,

SHIRLEY DANDENEAU, BONNIE

FULLER, HELEN HESS, BERNARD

WYNHOFF, JOHN GRECO, and

JOSEPH PORCARO,

eae Civil Action

Plaintiffs, No. 94-C-0908

V.

DENNIS KORNWOLEF, STEPHEN

SIMANEK and RACINE COUNTY,

Defendants.

DECISION AND ORDER

GRANTING MOTIONS TO DISMISS

(Filed Jun. 1, 1995)

Plaintiff, formerly part-time bailiffs in Racine County,

allege that defendants Dennis Kornwolf (“Kornwolf”)

and Judge Stephen Simanek (“Judge Simanek”) demoted

and discharged them in order to avoid paying them pen-

sion benefits. Plaintiffs bring suit under 42 U.S.C. § 1983,

claiming that defendants violated their due process rights

eae

App. 9

as civil service employees against being demoted or ter-

minated without cause. Plaintiffs seek reinstatement, lost

wages and pension benefits, compensatory damages, and

$1 million in punitive damages from Kornwolf. Defen-

dants have filed motions to dismiss, and, for reasons set

forth below, the motions shall be granted. The court has

jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

I. Factual Allegations

The thirteen plaintiffs were employed by Racine

County as part-time bailiffs. They each worked in excess

of 600 hours per year, and their job duties involved the

care and custody of jurors in the circuit courts of Racine

County. (Am. Compl. {f 8-9.) Plaintiffs were supervised

by the clerk of court but appointed by the judges of the

Racine County Circuit Court by court order. The appoint-

ment extended from December 19, 1991 through January

31, 1993. (Id./Ex. D.)

Plaintiffs allege that in the summer of 1992, Kornwolf

and Judge Simanek decided they could save money for

the County if they fired the plaintiffs and replaced them

with bailiffs who would work fewer than 600 hours per

year, thus enabling the County to avoid paying $.36 per

hour to cover the plaintiffs’ state-mandated pension ben-

efits. In August 1992, Judge Simanek placed advertise-

ments in local newspapers for part-time bailiffs willing to

work no more than 540 hours per year. (Id./Ex. A.) Korn-

wolf allegedly vowed that as long as he was county

executive, there would be no retirement benefits for part-

time employees. (Jd. { 12.) In September 1992, Kornwolf

App. 10

laid off the plaintiffs, even though they offered to pay

their own pension benefits to retain their jobs.

In January 1993, most of the plaintiffs were rehired as

“court attendants” rather than “bailiffs,” which plaintiffs

viewed as a demotion. In March 1993, the Racine County

circuit court judges signed an “order appointing court

attendants” through the end of 1993. The court order

limited plaintiffs’ work to 599 hours per vear. Plaintiffs

allege that despite working fewer hours, they were

assigned more work, because the county instituted a new

policy of assigning one bailiff per jury rather than two.

(Id. { 17.) In addition, plaintiffs could no longer receive

travel reimbursement or a uniform allowance. As a result

of these changes in conditions, several of the plaintiffs

quit their jobs, which they allege constituted constructive

discharge. They applied for and received pension bene-

fits, despite the County’s opposition. (Id. { 19.) In May

1993, Judge Simanek informed the plaintiffs still on the

job that they would be discharged and rehired as Kelly

Temporary Services employees.

In August 1994, plaintiffs filed this lawsuit, alleging

that Judge Simanek and Kornwolf, acting in their individ-

ual and official capacities, demoted and terminated them

without cause, notice, or a hearing, and that they con-

spired to do so, in violation of Chapter 63 of the Wiscon-

sin Statutes, which sets forth employment rules for

county and city civil service. Plaintiffs assert that viola-

tions of this chapter resulted in the deprivation of their

constitutional rights to due process under the Fourteenth

Amendment. Plaintiffs further allege that Racine County

violated their due process rights by transgressing the

eR an eter

App. 11

court orders signed by the Racine County circuit court

judges setting forth plaintiffs’ terms of appointment.

II. Analysis

A complaint should not be dismissed for failure to

state a claim unless it is “beyond doubt that the plaintiff

can prove no set of facts in support of his claim.” Conley

v. Gibson, 355 U.S. 41, 45-46 (1957). When considering

motions to dismiss, this court must accept as true the

plaintiff’s factual allegations and must draw all reason-

able inferences from the pleadings in favor of the plain-

tiff. Gillman v. Burlington N. R.R., 878 F.2d 1020, 1022 (7th

Cir. 1989).

Defendants have moved the court to dismiss plain-

tiffs’ suit chiefly on the ground that plaintiffs did not

have a constitutional due process property interest in

their employment as bailiffs.1 The court agrees that plain-

tiffs have failed to state a property interest.

A. Due Process Property Interest

Plaintiffs contend they possessed a property interest

in their employment as bailiffs of which defendants

deprived them without due process of law. The existence

of a substantive property interest in public employment

is a question of state law. Board of Regents v. Roth, 408 U.S.

564, 577 (1972). When asked to decide whether employees

1 In addition, defendants Simanek and Kornwolf argue that

they are qualifiedly immune from damages, but the court need

not address this claim.

App. 12

have a property interest in their jobs, Wisconsin courts

have “generally resolved the matter by providing a sim-

ple yes or no answer based on whether the employment

is at-will or for cause.” Fittshur v. Village of Menomonee

Falls, 31 F.3d 1401, 1405 (7th Cir. 1994). The Wisconsin

Supreme Court has held: “Under Wisconsin law, employ-

ment at will is the rule. Absent civil service regulations or

laws, or a contract or collective bargaining agreement, a

municipal employee is an employee at will and has no

property interest in employment.” Vorwald v. School Dist.

of River Falls, 167 Wis. 2d 549, 557, 482 N.W.2d 93 (1992).

Plaintiffs assert that they have a property interest in

their employment on two fronts: (1) civil service laws,

and (2) court order. The court shal! assess each of these

claims in turn.

1. Civil Service Laws

While there is no state statute that expressly provides

plaintiffs with civil service or “for cause” protection,

plaintiffs contend that they are civil service employees.

entitled to civil service protection because Racine County

passed an overbroad ordinance, Racine County Code

§§ 17-1 et seq. Racine County Code § 17-21 declares:

“There is hereby established a civil service commission

for the sheriff's department with duties, functions and

authority as herein set forth pursuant to W.S.A. §§ 59.21

and 63.01 et seq.” Plaintiffs argue that by passing this

ordinance, the County inadvertently created civil service

protection for all county employees because the ordi-

nance goes beyond the authority of the County pursuant

to Wisconsin Stat. § 59.21(8)(d), which states, in pertinent

App. 13

part: “The civil service provisions of this section shall

apply only to such deputies or traffic patrolmen who are

regularly employed by the county or sheriff.”

The court does not accept plaintiffs’ contention that

Racine County Code §§ 17-1 et seq. creates civil service

protection for all county employees. Wisconsin Stat.

§ 59.21 empowers a county to establish civil service pro-

tection for sheriff's department personnel. Wisconsin

Stat. §§ 63.01 ef seq. enumerate rules regarding county-

wide civil service, which counties are empowered to

establish pursuant to Wis. Stat. § 59.07(20). In passing

Racine County Code §§ 17-1 et seq., the County exercised

its discretion and authority to establish civil service pro-

tection for sheriff's personnel but not for all county

employees. Even if plaintiffs are correct that Racine

County Code §§ 17 et seq. goes beyond the power of the

county to establish civil service protection for sheriff's

personnel under Wis. Stat. § 59.21(8), that would merely

be an argument against extending civil service protection

to non-deputy sheriffs within the sheriff's department.

But it does not support plaintiffs’ argument that all

county employees are entitled to civil service protection,

in the absence of the County’s express intent to create

such protection pursuant to Wis. Stat. § 59.07(20).?

2 Wisconsin Stat. § 59.07(20) states in pertinent part:

The board of each county may exercise the following

powers, which shall be broadly and liberally

construed and limited only by express language:

(20) Civil service system. (a) Establish a civil

service system of selection, tenure and status, and the

App. 14

Plaintiffs are not protected by civil service laws where

Racine County has not expressly provided for such pro-

tection.

2. Court Order

In addition, plaintiffs maintain that they have a prop-

erty interest based on a court order appointing civilian

bailiffs for a specific period of time, which was signed by

the judges of the Racine County circuit.court. The “order

appointing civilian bailiffs” lists plaintiffs’ names and

limitations of their authority, and states: “The order is

effective immediately this date, December 19, 1991 and

shall expire January 31, 1993.” The order was established

pursuant to Wis. Const. art. VIL, § 8, which states inter alia

that “[t]he circuit court may issue all writs necessary in

aid of its jurisdiction,” and Wis. Stat. § 753.10, which

states inter alia that “[e]very officer attending court upon

the order of the presiding judge . . . shall be paid out of

the county treasury.” Plaintiffs argue that the court order

created a property interest in their employment as bai-

liffs.

This argument is not persuasive. As noted previ-

ously, the Wisconsin Supreme Court has held that

employment at will for public employees is the rule in

Wisconsin, absent civil service regulations or laws, a col-

lective bargaining agreement, or a contract. Vorwald v.

system may be made applicable to all county

personnel, except the members of the board,

constitutional officers and members of boards and

commissions.

App. 15

School Dist. of River Falls, 167 Wis. 2d 549, 557, 482 N.W.2d

93 (1992). The “court order appointing bailiffs” consti-

tutes neither a civil service law nor a collective bargain-

ing agreement. Plaintiffs were not civil service

employees, as explained above, nor were they members

of a union or parties to a collective bargaining agreement.

Nor was the court order a contract. Unlike cases in which

plaintiffs have argued that they were employed by virtue

of an implied contract,? plaintiffs in this action have

made no argument that they had an implied contract or

any type of contract. Plaintiffs do not use the word “con-

tract” in their complaint, filed August 15, 1994, nor in

their amended complaint, filed October 11, 1994. In their

response brief to defendants’ motions to dismiss, plain-

tiffs state that “[a] court order in Wisconsin is a binding

document, more venerable than a contract” (Pls.’ Resp.

Br. at 18), which further highlights plaintiffs’ position that

they did not have a contract. Without any evidence or

assertion by plaintiffs that an express or implied contract

existed, the court can only conclude that one did not.

Harris v. City of Auburn, 27 F.3d 1284, 1286 (7th Cir. 1994).

Thus, plaintiffs did not have a property interest by con-

tract.

B. Substantive Due Process

Plaintiffs amended their complaint in order to add a

cause of action based on Fourteenth Amendment substan-

tive due process. But this claim fails as well. Plaintiffs

3 See, e.g., Garvey v. Buhler, 146 Wis. 2d 281, 430 N.W.2d 616

(1988).

App. 16

argue that their right to substantive due process was

violated because their termination was arbitrary and

capricious. But this is not enough to state such a violation

because “[a] claim based on substantive due process must

be based on the deprivation of an underlying protected

life, liberty or property interest.” Zorzi v. County of Put-

nam, 30 F.3d 885, 894 (7th Cir. 1994). Plaintiffs do not

assert a life or liberty interest, and, as explained here-

tofore, plaintiffs fail to state facts constituting a property

interest deprivation. In the absence of a property interest,

a plaintiff may be terminated for arbitrary and capricious

reasons. Id. at 895.

C. Civil Conspiracy

Finally, plaintiffs allege that defendants Kornwolf

and Judge Simanek conspired to violate their Fourteenth

Amendment rights, pursuant to 42 U.S.C. § 1983. Plain-

tiffs assert that Kornwolf and Judge Simanek “agreed to

terminate Plaintiffs from Racine County employment”

(Compl. { 20) and that these two defendants “conspired

and combined to demote and dismiss Plaintiffs without

cause, notice or hearing.” (Compl. { 26.) To adequately

state a claim for civil conspiracy under § 1983, a plaintiff

must allege that defendants directed themselves toward

an unconstitutional action by virtue of a mutual under-

standing that suggests a meeting of the minds. Kunik v.

Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991). Because

plaintiffs’ constitutional rights were not violated, it can-

not be said that Kornwolf and Judge Simanek conspired

toward an unconstitutional action.

= s 2

App. 17

Ill. Conclusion

IT IS THEREFORE ORDERED that the motion to

dismiss filed by Dennis Kornwolf and Racine County is

GRANTED.

IT IS FURTHER ORDERED that Judge Stephen Sim-

anek’s motion to dismiss is GRANTED.

IT IS FURTHER ORDERED that this case is dis-

missed.

Dated at Milwaukee, Wisconsin, this lst day of June,

1995.

UNITED STATES DISTRICT COURT

By /s/ John W. Reynolds

John W. Reynolds

Judge

App. 18

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

JOAN FLYNN, et al.,

V.

DENNIS KORNWOLF,

et al.

JUDGMENT IN A

CIVIL CASE

(Filed Jun. 1, 1995)

CASE NUMBER: 94-C-908

{ ] Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

[X] Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that the defendants

motions to dismiss are granted and this action is hereby

DISMISSED.

June 1, 1995 SOFRON B. NEDILSKY

Date Clerk

Copy mailed to Attorneys

for parties by the court

pursuant to rule 87(D) fed-

eral rules of civil pro-

cedure.

/s/ Rita Zvers

(By) Deputy Clerk

App. 19

STATE OF WISCONSIN CIRCUIT COURT

RACINE COUNTY

’

ORDER APPOINTING CIVILIAN BAILIFFS

Pursuant to the Racine County Circuit Courts’ inhe--

ent power to make rules and orders necessary to properly

perform their function and,

Pursuant to Section 8, Article VIi of the Wisconsin

Constitution and,

Pursuant to Wisconsin Stats. Sec. 753.10,

The Racine County Circuit Court Judges order:

1. The following named individuals are appointed

as civilian bailiffs to attend upon the Racine County

Courts:

Robert Bertermann Jay Wildfong

Eva Christopherson Ed Bowman

Joan M. Flynn Shirley Dandeneau

John Greco Bonnie Fuller

Helen Hess Sally Guzek

Paul Rosenquist Joe Porcaro

Florence Stupar Margaret Schmaling

Bernard J. Wynhoff

2. The authority of the above-named individuals is

limited to:

a) The administration of case flow,

b) Taking charge of juries, and

c) Any other duties specifically requested

by the presiding judge.

App. 20

3. The above-appointed bailiffs are specifically not

authorized to take any individual into custody; not

authorized to physically evict any individual from the

courts; and not authorized to guard criminal defendants.

4. The order is to be effective for a period of sixty

(60) day from the date of signature.

5. The order is, however, retroactive to January 1,

1991.

Dated:

Dated:

Dated:

Dated:

Dated:

Dated:

Dated:

5/16/91

5/15/91

5/15/91

5/15/91

BY THE COURT:

/s/ Gerald P. Ptacek

Honorable Gerald P. Ptacek

Branch I

/s/ Stephen A. Simanek

Honorable Stephen A. Simanek

Branch II

Honorable Jon B. Skow

Branch III

/s/ Emmanuel J. Vuvunas

Honorable Emmanuel J. Vuvunas

Branch IV

/s/ Dennis J. Barry

Honorable Dennis J. Barry

Branch V

/s/ Wayne J. Marik

Honorable Wayne J. Marik

Branch VI

/s/ Nancy E. Wheeler

Honorable Nancy E. Wheeler

Branch VII

App. 21

Dated: 15 MAY 91 /s/ Dennis J. Flynn

Honorable Dennis J. Flynn

Branch VIII

App. 22

STATE OF WISCONSIN CIRCUIT COURT

RACINE COUNTY

ORDER APPOINTING CIVILIAN BAILIFFS

Pursuant to the Racine County circuit Courts’ inher-

ent power to make rules and orders necessary to properly

perform their function and,

Pursuant to Section 8, Article VII of the Wisconsin

Constitution and,

Pursuant to Wisconsin Stats. Sec. 753.10,

The Racine County Circuit Court Judges order:

1. The following named individuals are appointed

as civilian bailiffs to attend upon the Racine County

Courts:

Robert Bertermann Jay Wildfong

Eva Christopherson Ed Bowman

Joan M. Flynn Shirley Dandeneau

John Greco Bonnie Fuller

Helea Hess Sally Guzek

Paul Rosenquist Joe Porcaro

Florence Stupar Bernard J. Wynhoff

2. The authority of the above-named individuals is

limited to:

a) The administration of case flow,

b) Taking charge of juries, and

c) Any other duties specifically requested

by the presiding judge.

OS

App. 23

3. The above-appointed bailiffs are specifically not

authorized to take any individual into custody; not

authorized to physically evict any individual from the

courts; and not authorized to guard criminal defendants.

4. The order is effective immediately this date,

December 19, 1991 and shall expire January 31, 1993.

Dated:

Dated:

Dated:

Dated:

Dated:

Dated:

Dated:

Dated:

Jan. 9, 1992

12-23-91

Jan. 7, 1992

12/26/91

Jan. 7, 1992

Jan. 9, 1992

9 JAN 92

21 JAN 92

BY THE COURT:

/s/ Gerald P. Ptacek

Honorable Gerald P. Ptacek

Branch I

/s/ Stephen A. Simanek

Honorable Stephen A. Simanek

Branch II

/s/ Emmanuel J. Vuvunas

Honorable Emmanuel J. Vuvunas

Branch IV

/s/ Dennis J. Barry

Honorable Dennis J. Barry

Branch V

/s/ Wayne J. Marik

Honorable Wayne J. Marik

Branch VI

/s/ Nancy E. Wheeler

Honorable Nancy E. Wheeler

Branch VII

/s/ Dennis J. Flynn

Honorable Dennis J. Flynn

Branch VIII

/s/ Allan B. Torhorst

Honorable Allan B. Torhorst

Branch IX

App. 24

STATE OF WISCONSIN CIRCUIT COURT

RACINE COUNTY

ORDER APPOINTING COURT ATTENDANTS

Pursuant to the Racine County Circuit Courts’ inher-

ent power to make rules and orders necessary to properly

perform their function and,

Pursuant to Section 8, Article VII of the Wisconsin

Constitution and,

Pursuant to Wisconsin Stats. Sec. 753.10,

The Racine County Circuit Court Judges order:

1. The following named individuais are appointed

as court attendants to attend upon the Racine County

Courts:

George Janosik Sharon Mullen Robert Bertermann

Maureen Eckert John Swan James Vernon

Bernice Christensen Donald Bostick Jay Wildfong

Eva Christopherson Ed Bowman Mickey Turkowski

John Greco Bonnie Fuller Judy Winsall

Joe Pocaro Bernard J. Wynhoff Greta Andersen

Janet Gergen Paul Rosenquist Sally Guzek

2. The authority of the above-named individuals is

limited to:

a) The administration of case flow,

b) Taking charge of juries, and

c) Any other duties specifically requested

by the presiding judge.

App. 25

3. The above-appointed court attendants are speci-

fically not authorized to take any individual into custody;

not authorized to physically evict any individual from the

courts; and not authorized to guard criminal defendants.

4. Court Attendants’ work shall be limited to 599

hours of work in any 12 month period.

5. This order expires on 12-31-93.

BY THE COURT:

Dated: 3/18/93 /s/ Gerald P. Ptacek

Honorable Gerald P. Ptacek

Branch I

Dated: 3/18/93 /s/ Stephen A. Simanek

Honorable Stephen A. Simanek

Branch Il

Dated: 3/18/93 /s/ Emily S. Mueller

Honorable Emily S. Mueller

Branch III

Dated: 3-29-93 /s/ Emmanuel J. Vuvunas

Honorable Emmanuel J. Vuvunas

Branch IV

Dated:

MARCH 19, 1993 /s/ Dennis J. Barry

Honorable Dennis J. Barry

Branch V

Dated:

March 18, 1993 /s/ Wayne J. Marik

Honorable Wayne J. Marik

Branch VI

Dated: 3-19-93 /s/ Nancy E. Wheeler

Honorable Nancy E. Wheeler

Branch VII

Dated:

18 MARCH 1993

Dated: 3-18-93

App. 20

/s/ Dennis J. Flynn

Honorable Dennis J. Flynn

Branch VII

/s/ Allan B. Torhorst

Honorable Allan Pat Torhorst

Branch IX

ee ee

App. 27

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

JOAN FLYNN, ROBERT

BERTERMANN, EVA

CHRISTOPHERSON, SALLY

GUZEK, PAUL ROSENQUIST, JAY

WILDFONG, ED BOWMAN,

SHIRLEY DANDENEAU, BONNIE

FULLER, HELEN HESS, BERNARD

WYNHOFF, JOHN GRECO, and

JOSEPH PORCARO,

Plaintiffs Case No. 94-C-0908

V.

DENNIS KORNWOLF, and

STEPHEN SIMANEK, in their

individual capacities,

and RACINE COUNTY,

a municipal corporation,

Defendants.

AMENDED COMPLAINT

Plaintiffs, by their attorneys, Adelman, Adelman &

Murray, by Elizabeth Adelman, allege as follows:

JURISDICTION AND VENUE

1. This is a civil action in which Plaintiffs seek

reinstatement to their jobs as bailiffs with Defendant

Racine County as well as back pay and other damages

and a permanent injunction restraining all Defendants

from terminating the employment of the Plaintiffs;

App. 28

2. This action arises under 42 U.S.C. §1983 and the

14th Amendment to the United States Constitution;

3. This Court’s jurisdiction is invoked under 28

U.S.C. §§1331 and 1343(a)(4);

4. Plaintiffs Joan Flynn, Robert Bertermann, Eva

Christopherson, Sally Guzek, Paul Rosenquist, Jay Wild-

fong, Ed Bowman, Shirley Dandeneau, Bonnie Fuller,

Helen Hess, Bernard Wynhoff, John Greco and Joseph

Porcaro are residents of Racine County, Wisconsin, and

were employed by Racine County as bailiffs until 1993.

5. Defendant Dennis Kornwolf is the County Execu-

tive of Racine County, Wisconsin, and is sued in his

individual capacity for acts done under color of law;

6. Defendant Stephen Simanek is a Circuit Court

Judge in Racine County, Wisconsin, and is the Chief

Judge of Judicial District II of the State of Wisconsin. He

is sued in his individual capacity for acts done under

color of law;

7. Defendant Racine County is a municipal corpora-

tion incorporated under the laws of the State of Wiscon-

sin.

FIRST CAUSE OF ACTION

8. Plaintiffs were employed by Defendant Racine

County as part-time bailiffs. Their duties primarily

involved the care and custody of jurors, from checking

jurors into court, excusing some jurors from duty, accom-

panying jurors during recesses from deliberations, carry-

ing messages from jurors to the judge, arranging for

meals, accommodations and transportation of jurors and

App. 29

otherwise assuring the sanctity of trial by jury in the

Circuit Courts of Racine County;

9. Prior to 1992 Plaintiffs worked as bailiffs for more

than 600 hours per year;

10. During the summer of 1992, Defendants Dennis

Kornwolf in his position as the Racine County Executive

and Stephen Simanek, in his position as the Chief Judge

of Racine County Circuit Court, realized that once any

county employee, including the bailiffs, works in excess

of 600 hours per year, that employee must be covered by

and receive pension benefits from the Wisconsin Retire-

ment System;

11. In August 1992, Stephen Simanek acting as

Chief Judge, placed an advertisement in the Racine Journal

Times and Burlington Standard for bailiffs to replace the

Plaintiffs. (See attached advertisement, Exhibit A);

12. In August or September, 1992, County Executive

Dennis Kornwolf met with the Clerk of Circuit Courts

and told him he intended to lay the bailiffs off because ii

would cost the county 36 cents per hour to cover the

bailiffs under the pension plan of the Wisconsin Retire-

ment System. Dennis Kornwolf also told the Clerk of

Circuit Courts that so long as he was county executive

there would be no retirement benefits for part-time

employees;

13. In August or September, 1992, a delegation of

three (3) bailiffs met with County Executive Dennis Korn-

wolf and offered to take a cut in pay so that pension plan

coverage for the bailiffs would not cost the county any

money. Dennis Kornwolt refused the offer. (see letter

App. 30

from bailiffs offering to pay the pension plan coverage

attached as Exhibit B);

14. In September, 1992, County Executive Dennis

Kornwolf caused the bailiffs to be laid off and leave their

employment;

15. In October, 1992, Plaintiffs sent a letter to

County Executive Dennis Kornwolf again offering to take

a cut in pay. Plaintiffs received no answer;

16. Plaintiffs sought unemployment compensation.

Defendant Racine County, at the direction of County

Executive Dennis Kornwolf, pursued a meritless contest,

claiming the bailiffs were independent contractors or

state, nor county employees. The administrative law

judge found that Racine County’s arguments were “spe-

cious” and “outrageous,” without a “shred of evidence”

and a “shameful compounding of the ill-use of the more

vulnerable county employees” and awarded benefits.

(Unemployment Compensation decision attached as

Exhibit C);

17. In January, 1993, Plaintiffs were recalled to

work, however, demoted trom “bailiffs” to “court atten-

dants.” The county kept the replacement workers hired

pursuant to the advertisement set forth above in Para-

graph 4, resulting in twice the number of people and

fewer hours of employment for each bailiff. In the past,

two (2) bailiffs were assigned to each jury. In January,

only one bailiff was assigned to each jury, resulting in

double the work and significantly fewer hours for each

bailiff. Defendant Racine County, under the direction of

:

5

|

z

F

a

:

4

a

:

App. 31

County Executive Dennis Kornwolf, attempted to retroac-

tively terminate travel reimbursement and terminated the

uniform allowance which had been provided previously;

18. The demotion from “bailiff” to “court atten-

dant,” the changes in the terms of employment and the

limitation of only one bailiff for each jury resulted in a

constructive discharge. Due to these changes, some of the

Plaintiffs quit work for Racine County;

19. Thereafter, some of the Plaintiffs applied to the

State Retirement System to receive their pensions. Racine

County opposed this. Again, Plaintiffs won and received

notice that the bailiffs were required to be included in the

Wisconsin Retirement System. Racine County was

required to pay to the Wisconsin Retirement System the

required pension contributions which Racine County had

not paid;

20. Dennis Kornwolf and Stephen Simanek agreed

to terminate Plaintiffs from Racine County employment;

21. In May, 1993, Plaintiffs were told to attend a

meeting with Judge Stephen Simanek acting in his official

capacity. At the meeting, Stephen Simanek discharged

Plaintiffs and told Plaintiffs that in the future they would

be employed as Kelly Temporaries;

22. Plaintiffs have a property right to Racine County

employment as bailiffs in that Ch. 63 Wis. Stats. grants

protection to all county employees, with exceptions not

relevant here, against demotion or discharge except upon

a showing of cause, after notice and hearing when the

County has a civil service commission. Racine County has

a civil service commission;

App. 32

23. The above actions demoting and then terminat-

ing the Plaintiffs without cause, without notice and with-

out a hearing violate Chapter 63 of the Wisconsin Statutes

and deprive Plaintiffs of rights secured by the Constitu-

tion and laws of the United States, that is, 42 U.S.C. §1983

and the 14th Amendment.

24. In acting to demote and then discharge Plain-

tiffs, County Executive Dennis Kornwolf acted willfully,

unlawfully, maliciously and in wanton disregard for the

rights of Plaintiffs.

SECOND CAUSE OF ACTION

25. Plaintiffs reallege paragraphs 1-24 as though

fully set forth herein.

26. Defendants Dennis Kornwolf and Stephen Sim-

anek conspired and combined to demote and dismiss

Plaintiffs without cause, notice or hearing, which they

knew or should have known violated Ch. 63 of the Wis-

consin Statutes and deprived ;Plaintiffs of rights secured

by the Constitution and laws of the United States, that is,

42 USC §1983 and the 14th Amendment.

THIRD CAUSE OF ACTION

27. Plaintiffs reallege paragraph 1-26 as though

fully set forth herein.

28. Racine County, by its county board, enacted an

ordinance codified as Chapter 17 of the Racine County

Ordinances. This ordinance establishes a civil service

AR eR ROPE Mi PRE BE Aa OS

FB othe

App. 33

commission, but purports to limit its scope to the Sher-

iff’s Department, thereby excluding Plaintiffs from its

due process protections;

29. Section 63.03 Wis. Stats. requires civil service

protection be awarded to all county employees, with

exceptions not relevant here, when a county appoints a

civil service commission;

30. Racine County’s illegal exclusion of Plaintiffs

from civil service protections against demotion or dis-

missal only for cause, upon notice and after a hearing,

caused the illegal demotion and dismissal of Plaintiffs;

31. Racine County’s illegal exclusion of Plaintiffs

from civil service protections against demotion or dis-

missal only for cause, upon notice after a hearing violates

the 14th Amendment to the United States constitution

and 42 USC §1983;

32. Racine County is also liable for these violations

of 42 U.S.C. §1983 because the actions taken to demote

and dismiss Plaintiffs were taken by Dennis Kornwolf in

his capacity as county executive and Stephen Simanek in

his capacity as chief judge. Racine County gave these

Defendants final authority to make these decisions

regarding the bailiffs, now known as court attendants.

FOURTH CAUSE OF ACTION

33. Plaintiffs reallege paragraphs 1-21 and 24 as

though fully set forth herein;

34. On or about December 19, 1991, Plaintiffs were

appointed as bailiffs for a definite term from December

App. 34

19, 1991, through January 31, 1993. (See attached order

Appointing Civilian Bailiffs, Exhibit D);

35. On or about March 18, 1993, all Plaintiffs except

Joan Flynn and Shirley Dandaneau were again appointed

as bailiffs for a definite term until December 31, 1992 (See

attached Order Appointing Court Attendants, Exhibit E);

36. Despite the above two (2) Orders establishing

definite terms for employment, Defendants Dennis Korn-

wolf and Stephen Simanek laid off, demoted and then

terminated Plaintiffs during the definite terms of employ-

ment.

37. The lay off, demotion and termination are arbi-

trary and capricious, being without a rational basis;

38. There are no adequate state law remedies to

provide relief against the arbitrary lay off, demotion and

termination;

39. The arbitrary lay off, demotion and termination

were done with deliberate indifference to Plaintiffs’ rights

and violate 42 U.S.C. §1983 and substantive due process

as set forth in the 14th Amendment to the United States

Constitution.

WHEREFORE, Plaintiffs request the following relief:

A. Preliminary and permanent injunctions reinstat-

ing Plaintiffs as bailiffs employed by Racine County

under the same terms of employment as existed prior to

September, 1992.

B. Lost wages and lost pension benefits.

C. $70,000.00 in compensatory damages.

ee tee oe

App. 35

D. $1,000,000.00 in punitive damages from Dennis

Kornwolf.

E. Attorneys fees and costs.

F. Such other relief as is just.

PLAINTIFFS DEMAND TRIAL BY JURY.

DATED this 7 day of October, 1994.

ADELMAN, ADELMAN &

MURRAY, S.C.

By: /s/ Elizabeth Adelman

Elizabeth Adelman

State Bar No. 1014258

P. O. Address:

308 East Juneau Avenue

Milwaukee, WI 53202

414-225-2920

App. 36

BAILIFFS FOR STATE OF WISCONSIN

Located in Racine County

Bailiffs are appointed by the circuit Court Judges of

Racine County. They are supervised by the judges and the

Clerk of Courts Office. Their duties include the supervi-

sion of jurors and they provide general assistance to the

court and the public as is necessary. No bailiff may work

more than 540 hours in a calendar year, salary $5.50 per

hour. No benefits are attached to this position.

Persons applying must be able to work flexible hours,

which may include weekends, have good verbal skills,

have the ability to follow and give directions and have a

general knowledge of legal proceedings.

Interested applicants can apply at the Racine County

Personnel Department, 730 Wisconsin Avenue, Racine WI

63403. Your application will be forwarded to the Clerk of

Courts office: Persons applying at this time will be con-

sidered for bailiff positions through December 31, 1992.

The bailiff positions are judicial appointments and bailiffs

are not considered employees of either Racine County or

the State of Wisconsin. Stephen A. Simanek, Chief Judge.

Deadline for accepting applications:

August 21, 1992

SAECO FO MEK?

Ce ee a ee ee See Toe

App. 37

Representatives for Bailiffs

Shirley Dandeneau - 639-620

Joe Porcaro — 639-262

10/11/92

County Executive Dennis Kornwolff:

The Racine County Bailiffs are more than willing to pay

the state retirement cost. We would appreciate a meeting

at your earliest convenience to discuss this matter.

Sincerely,

Shirley Dandeneau

Joe Porcaro

Bonnie E. Fuller

Edward E. Bowmen

Eva J Christopherson

B.J. Wynhoff

Sally Guzek

John J. Greco

Helen L. Hess

Robert P. Bertermann

Jay Wildfong

App. 38

APPEAL TRIBUNAL DECISION

MILWAUKEE HEARING OFFICE

819 N. 6th Street, Room 382

Milwaukee, WI 53203

Telephone: (414) 227-4416

Fax: (414) 227-4264

State of Wisconsin

Department of Industry

Labor and Human Relations

Unemployment Compensation

Mailed to:

SHIRLEY DANDENEAU

4330 N GREEN BAY RD

RACINE, WI 53404-1214

Hearing No. 93602248ROG

In the matter of:

Employee: EDWARD E BOWMAN, ET AL.,

RESPONDENTS

L.O. & S.S. No. 18/390-24-8016

vs.

Employer: COUNTY OF RACINE, APPELLANT

UC Account No. 692049

APPEAL RIGHTS

THIS DECISION WILL BECOME FINAL UNLESS A

WRITTEN APPEAL IS FILED WITHIN 21 DAYS FROM

THE DATE OF THIS DECISION. (SEE DATE BELOW.)

THE APPEAL MAY BE FILED AT A LOCAL UC OFFICE,

A UC HEARING OFFICE, OR THE LABOR AND INDUS-

TRY REVIEW COMMISSION OFFICE. THE COMMIS-

SION WILL REVIEW THE EVIDENCE ALREADY

App. 39

PRESENTED AT THE HEARING TO MAKE A DECI-

SION. NO FURTHER HEARING WILL BE HELD

UNLESS THE COMMISSION SO ORDERS.

A CLAIMANT WHO IS STILL UNEMPLOYED

SHOULD CONTINUE TO FILE CLAIMS WHILE THE

REVIEW IS PENDING. IF THIS DECISION ALLOWS

BENEFIT PAYMENT, PAYMENTS WILL BE MADE AND

WILL CONTINUE UNLESS A LATER DECISION

DENIES BENEFIT PAYMENT. IF THIS DECISION OR

ANY HIGHER LEVEL DECISION REVERSES AND

RESULTS IN A DENIAL OF BENEFIT PAYMENT, THE

CLAIMANT WILL BE REQUIRED TO REPAY PREVI-

OUSLY PAID BENEFITS.

ANOTHER HEARING WILL NOT BE SCHEDULED

UNLESS A PARTY WHO FAILED TO APPEAR SHOWS

GOOD CAUSE FOR NOT APPEARING AT THE HEAR-

ING ORIGINALLY SCHEDULED. THE REQUEST FOR

RESCHEDULING MUST BE IN WRITING, MUST

FEXPLAIN THE REASON FOR FAILING TO APPEAR,

AND SHOULD BE MAILED IMMEDIATELY TO THE UC

HEARING OFFICE ABOVE. IF YOU DO NOT UNDER-

STAND THE PROCEDURE, CALL THE UC HEARING

OFFICE FOR ASSISTANCE.

DECISION: SEE ATTACHED DECISION WHICH

AFFIRMS THE INITiIAL DETERMINA-

TION.

Employee appeared by: IN PERSON

Pe ee

App. 40

Employer appeared by:

SUSAN C. JOHNSTON

ASST CORPORATION COUNSEL

Administrative Law Judge

KEVIN CARR

Dated and Mailed

APRIL 19, 1993

Appeal Must Be Received Or Postmarked by:

MAY 10, 1993

(SEE REVERSE FOR ADDITIONAL INFORMATION)

Decision mailed to:

GROUP APPENDIX (ATTACHED)

COUNTY OF RACINE, % COUNTY CLERK,

RACINE CTY CTHSE, RACINE, WI 53403

THE DEPARTMENT'S INITIAL DETERMINATION

HELD: that in the case of each of the claimants the

services of the claimants were performed in employment

covered by Wisconsin unemployment compensation law,

that the claimants’ services were not excluded employ-

ment as appointed public officials, and allowed benefits

based on services for the employing unit, a governmental

subdivision.

Based on the applicable records and evidence in this

case, the appeal tribunal makes the following

FINDINGS OF FACT and CONCLUSIONS OF LAW

The claimants performed services as bailiffs, or court

attendants as they had been renamed beginning in 1993.

Their primary function is to assist the court in jury trials

with the managing of the juries. The bailiffs were hired

by the clerk of courts. Their hiring was approved by the

App. 41

chief judge and was formalized by an appointment order.

The bailiffs work under the direct supervision of the clerk

of courts. When a bailiff is not immediately working with

the court or a jury, the clerk of courts would, on occasion,

assign clerical duties to the bailiffs.

The rate of pay for the bailiffs was set by county

board resolution. The bailiffs are given a set of rules that

were written by the clerk of courts and reviewed by the

chief judge. The bailiffs would wear a suit jacket pro-

vided by the county as a type of uniform. The bailiffs

were paid with a county payroll check from which taxes

were withheld. They received a W-2 Form at the end of

the year.

In September of 1992 the bailiffs were laid off by

directive of the county executive. The purpose of the

layoff was to prevent the bailiffs from working a certain

number of hours after which the bailiffs would be eligible

for state mandated benefits.

in questioning benefit eligibility the employer origi-

nally alleged that the bailiffs were excluded under

§ 108.02(15)(f)3 of the statutes, “As members of a legisla-

tive body or the judiciary of a state or political subdivi-

sion.” The initial determination rejected that argument.

On appeal the employer abandoned that allegation but

raised the allegation that the bailiffs performed their

services as independent contractors, or in the alternative,

as employes [sic] of the court and/or for the state instead

as employes [sic] of the county.

The arguments of the county-appellant are specious.

The county provided not a shred of evidence to demon-

strate that the services of the bailiffs were performed free

App. 42

from the direction and control of the county or in an

independently established trade, business or profession.

Moreover, the services of the bailiffs accrued directly to

the county and not to the state. The court served country

cases. The supervision was done by county employes

[sic]. The county board set compensation. The county

executive ordered the layoff. The county personnel

department provided the paychecks. The most outra-

geous factor is that court clerks, whose employment is

similarly at the pleasure of the circuit court judges, are

considered by the county to be county employes. The

only differences is that the court clerks are unionized and

the bailiffs are not. The issues raised by the employer

before and after the appeal demonstrated a shameful

compounding of the ill-use of the more vulnerable county

employes [sic].

The appeal tribunal therefore finds that as of week 38

of 1992, the claimants performed their services for the

employer in an employment covered by Wisconsin unem-

ployment compensation law, within the meaning of

§§ 108.02(12), 108.02(15) and 108.09(2) of the statutes.

DECISiON

The department's initial determination are affirmed.

Accordingly, benefits are allowed, if the claimants are

otherwise qualified.

APPEAL TRIBUNAL

By /s/ Kevin Carr

Kevin Carr

Administrative

Law Judge

App. 43

EXHIBIT D

STATE OF WISCONSIN CIRCUIT COURT

RACINE COUNTY

ORDER APPOINTING CIVILIAN BAILIFFS

Pursuant to the Racine County Circuit Courts’ inher-

ent power to make rules and orders necessary to properly

perform their function and,

Pursuant to Section 8, Article VII of the Wisconsin

Constitution and,

Pursuant to Wisconsin Stats. Sec. 753.10,

The Racine County Circuit Court Judges order:

1. The following named individuals are appointed

as civilian bailiffs to attend upon the Racine County

Courts:

Robert Bertermann Jay Wildfong

Eva Christopherson Ed Bowman

Joan M. Flynn Shirley Dandeneau

John Greco Bonnie Fuller

Helen Hess Sally Guzek

Paul Rosenquist Joe Porcaro

Florence Stupar Bernard J. Wynhof{f

2. The authority of the above-named individuals is

limited to:

a) The administration of case flow,

b) Taking charge of juries, and

c) Any other duties specifically requested

by the presiding judge.

App. 44

3. The above-appointed bailiffs are specifically not

authorized to take any individual into custody; not

authorized to physically evict any individual from the

courts; and not authorized to guard criminal defendants.

4. The order is effective immediately this date,

December 19, 1991 and shall expire January 31, 1993.

Dated:

Dated:

Dated:

Dated:

Dated:

Dated:

Dated:

Dated:

Jan. 9, 1992

12-23-91

Jan. 7, 1992

12/26/91

Jan. 7, 1992

Jan. 9, 1992

9 JAN 92

21 JAN 92

BY THE COURT:

/s/ Gerald P. Ptacek

Honorable Gerald P. Ptacek

Branch I

/s/ Stephen A. Simanek

Honorable Stephen A. Simanek

Branch II

/s/ Emmanuel J. Vuvunas

Honorable Emmanuel J. Vuvunas

Branch IV

/s/ Dennis J. Barry

Honorable Dennis J. Barry

Branch V

/s/ Wayne J. Marik

Honorable Wayne J. Marik

Branch VI

/s/ Nancy E. Wheeler

Honorable Nancy E. Wheeler

Branch VII

/s/ Dennis J. Flynn

Honorable Dennis J. Flynn

Branch VIII

/s/ Allan B. Torhorst

Honorable Allan B. Torhorst

Branch IX

App. 45

EXHIBIT E

STATE OF WISCONSIN CIRCUIT COURT

RACINE COUNTY

ORDER APPOINTING COURT ATTENDANTS

Pursuant to the Racine County Circuit Courts’ inher-

ent power to make rules and orders necessary to properly

perform their function and,

Pursuant to Section 8, Article VII of the Wisconsin

Constitution and,

Pursuant to Wisconsin Stats. Sec. 753.10,

The Racine County Circuit Court Judges order:

1. The “ollowing named individuals are appointed

as court attendants to attend upon the Racine County

Courts:

George Janosik Sharon Mullen Robert Bertermann

Maureen Eckert John Swan James Vernon

Bernice Christensen Donald Bostick Jay Wildfong

Eva Christopherson Ed Bowman Mickey Turkowski

John Greco Bonnie Fuller Judy Winsall

Joe Pocaro Bernard J. Wynhoff Greta Andersen

Janet Gergen Paul Rosenquist Sally Guzek

2. The authority of the above-named individuals is

limited to:

a) The administration of case flow,

b) Taking charge of juries, and

c) Any other duties specifically requested

by the presiding judge.

App. 46

3. The above-appointed court attendants are speci-

fically not authorized to take any individual into custody;

not authorized to physically evict any individual from the

courts; and not authorized to guard criminal defendants.

4. Court Attendants’ work shall be limited to 599

hours of work in any 12 month period.

5. This order expires on 12-31-93.

BY THE COURT:

Dated: 3/18/93 -/s/ Gerald P. Ptacek

Honorable Gerald P. Ptacek

Branch I

Dated: 3/18/93 /s/ Stephen A. Simanek

Honorable Stephen A. Simanek

Branch II

Dated: 3/18/93 /s/ Emily S. Mueller

Honorable Emily S. Mueller

Branch III

Dated: 3-29-93 /s/ Emmanuel J. Vuvunas

Honorable Emmanuel J. Vuvunas

Branch IV

Dated:

MARCH 19, 1993 /s/ Dennis J. Barry

Honorable Dennis J. Barry

Branch V

Dated:

March 18, 1993 /s/ Wayne J. Marik

Honorable Wayne J. Marik

Branch VI

Dated: 3-19-93 /s/ Nancy E. Wheeler

Honorable Nancy E. Wheeler

Branch VII

App. 47

Dated:

18 MARCH 1993 /s/ Dennis J. Flynn

Honorable Dennis J. Flynn

Branch VII

Dated: 3-18-93 /s/ Allan B. Torhorst

Honorable Allan Pat Torhorst

Branch IX