# Petition for Writ of Certiorari — Flynn v. Kornwolf > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1309%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 519 U.S. 930 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1309%3A1. Public record. Not legal advice.