Opposition Brief — Flynn v. Kornwolf

October Term, 1995

a

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 KORNWOLEF and STEPHEN SIMANEK, in

their individual capacities, and RACINE COUNTY,

a municipal corporation,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

7

BRIEF OF RESPONDENTS, DENNIS KORNWOLF

AND RACINE COUNTY, IN OPPOSITION TO

GRANTING A PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

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Mark JANIUK

Counsel of Record

Lestig SCHMERIN

Counsel for Respondents

Racine County Corporation

Counsel

Courthouse

730 Wisconsin Avenue

Racine, WI 53403

(414) 636-3115

COCR et athe

OR CALL COLLECT (402) 342-283

QUESTIONS PRESENTED FOR REVIEW

Racine County and Dennis Kornwolf believe that the

questions properly before this Court are as follows:

1) Where state law provides that an employment

contract which provides for employment for a specified

duration creates a property interest, does a court order

which appoints individuals as bailiffs and which has an

expiration date for the court order create a property

interest where the court does not provide for employment

for a specified duration and does not expressly prohibit

the court from terminating the bailiffs without cause?

2) If the Seventh Circuit erred in applying certain

Federal case law in ruling that the court order here

involved created no property interest of the Petitioners

triggering due process protections, does such error war-

rant remand of this case to the Seventh Circuit for a re-

consideration of such ruling?

il

TABLE OF CONTENTS

Page

Ouestions Presented x..s.c so. <ccsedaeb cherie tees eresie i

Table of Comtenie, « s oxecs ceiver curerees Gas teeeaean ii

Table OF AGEROCINES 2.0 55 cevntsccassnesteepiaiee iv

Statutory Provisions Involved...................56. 1

Statement of the Came cis. ois cke elise 2

Summary of Argument ... 2.365550 0ccascasanenenses 2

ATRUMBNE 2.060 sap cecvbuucevuns eee eseeupeeadeaswers 3

I. CERTIORARI SHOULD BE DENIED BECAUSE

THERE ARE NO COMPELLING REASONS FOR

THIS COURT TO REVIEW THIS CASE........ 3

Il. THE SEVENTH CIRCUIT’S DECISION PROP-

ERLY INTERPRETED AND APPLIED WISCON-

SIN LAW WHEN DETERMINING WHETHER

PETITIONERS HAD A PROPERTY INTEREST

IN THEIR EMPLOYMENT AS CIRCUIT COURT

DATE IPES is isa cccns vs caseneeeacauns FeveeeA AR 2

Ill. THE SEVENTH CIRCUIT’S REFERENCE TO

“EXPLICITLY MANDATORY LANGUAGE”

WAS NOT FATAL TO ITS DECISION THAT

THE COURT ORDER DID NOT CREATE A

PROPERTY INTEREST IN EMPLOYMENT..... 7

IV. EVEN IF THE SEVENTH CIRCUIT MISIN-

TERPRETED WISCONSIN LAW, THE DECI-

SION OF THE SEVENTH CIRCUIT WAS

CORI sc ronan cancndaweesescets beneapeenase 8

iii

TABLE OF CONTENTS - Continued

Page

A. The Seventh Circuit Properly Concluded

That Under Wisconsin Law, A Court Order

Is Not A Civil Service Regulation Or Law,

Contract Or Collective Bargaining Agree-

DUPE SSCERSCASAGON GSK NWA SE CSAD EBL COC ene 8

B. The Circuit Court Judges Who Signed The

Order Were Not Authorized To Enter Into

An Employment Relationship On Behalf Of

Racine County Because The Judges Are State

Employees, Not County Agents ........... 12

I Sioa be 0G40 ooCba sake dbs ke Cbs ceedeecs 14

iv

TABLE OF AUTHORITIES

Page

CASES

Federal

Board of Regents v. Roth, 408 U.S. 564 (1972).......... 5

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

(FU EO SOP i in awa kel paw nt ewe ba calene Seen 5

Sandin v. Conner, 115 S.Ct. 2293 (1995) ............... 7

Thelen v. Marc's Big Boy Corp., 64 F.3d 264 (7th Cir.

BRUGES w5.ck oes cagh aj ebs etnies’ sehs Sinabanebkbyee) 10

State

Forrer v. Sears, Roebuck and Co., 153 N.W.2d 587

tis Deen Peer eres ep rerr eeee 6, 10

Goossen v. Estate of Standaert, 525 N.W.2d 314 (Wis.

ae Me. | Uereerenyryer ert eevere rr Terr Tree 9

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

(WVBR. SO Ams. TPR sk so wows ve ia nceknductesieenesss 6

Iowa County v. Iowa County Courthouse/Social Ser-

vices Employees, Local 413, AFSCME, AFL-CIO,

SDD TETe ee Gee CePe aaa kaskceenteek ceaNaney snes 12

State v. Cannon, 221 N.W. 603 (1928) ................ 10

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

(Wis. 1992), cert. denied, 506 U.S. 941 (1992)..5, 6, 9

STATUTES

supente Capust Ge TGs oi as sk vcsaacnsevdeesecuaus ces 3

Pua. DUG. Se Dee sacs ne camblans cunenucsauscees 1, 12

Vv

TABLE OF AUTHORITIES - Continued

UN SW FRM oo os 5 Oh oh KEKE REN, 1, 11

Wee CNR OE PUUNN So case be Noh series ek a 2

Wis.

Wis.

STATUTORY PROVISIONS INVOLVED

Stat. § 5.02(23)

“State office” means the offices of governor,

lieutenant governor, secretary of state, state

treasurer, attorney general, state superintendent

of public instruction, justice of the supreme

court, court of appeals judge, circuit court

judge, state senator, state representative to the

assembly and district attorney.

Stat. § 751.02

Employes. The Supreme court may authorize

the employes it considers necessary for the exe-

cution of the functions of the supreme court and

the court of appeals and the court reporting

functions of the circuit courts and may desig-

nate titles, prescribe duties and fix compensa-

tion. Compensation and benefits of employes

should be consistent with that paid to state

employes in the classified service for services

involving similar work and responsibility. Each

justice and court of appeals judge may appoint

and prescribe the duties of a secretary and a law

clerk to assist the justice or judge in the perfor-

mance of his or her duties. Each circuit judge

may appoint a court reporter to serve in the

court or branch of court to which he or she was

elected or appointed if the reporter is certified

as qualified by the director of state courts. A

person appointed by the supreme court or a

justice or court of appeals judge or a circuit

judge serves at the pleasure of the court or the

justice or judge.

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.

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STATEMENT OF CASE

Respondents Dennis Kornwolf and Racine County

adopt and incorporate herein Respondent Stephen Sim-

anek’s Statement of Case as set forth in his Brief in

Opposition to Granting a Petition for a Writ of Certiorari.

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SUMMARY OF ARGUMENT

There are no compelling reasons why this court

should grant a petition to review this case. Contrary to

Petitioners’ assertions, this case does not involve a fed-

eral question or a departure from prior decisions of this

Court or any other court of appeals. In fact, the Seventh

Circuit’s decision was properly grounded on Wisconsin

state law which is the only law that governs the outcome

of this case.

Contrary to Petitioners’ assertion that the Seventh

Circuit based its opinion on “explicitly mandatory lan-

guage”, the court merely made a passing reference to that

concept. Even if the court did refer to “explicitly manda-

tory language”, this Court has made clear that although

the concept has been abandoned in the context of pris-

oner litigation, it is preserved for use in other contexts

involving the general public. Because this case involves

the general public, there is nothing fatal about the Sev-

enth Circuit’s passing reference to “explicitly mandatory

language” in its decision.

Furthermore, even if the Seventh Circuit misin-

terpreted Wisconsin law, it properly concluded that a

court order is not a civil service regulation or law, con-

tract or collective bargaining agreement. Finally, Circuit

Court judges in Wisconsin are state employees and as

such are not authorized to enter into employment agree-

ments on behalf of the county.

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ARGUMENT

I. CERTIORARI SHOULD BE DENIED BECAUSE

THERE ARE NO COMPELLING REASONS FOR

THIS COURT TO REVIEW THIS CASE.

Rule 10 of the Supreme Court Rules sets forth the

considerations which this Court relies upon in determin-

ing whether to grant a petition for a writ of certiorari. A

petition for certiorari will be granted only for compelling

reasons. SCR 10. Rule 10 of the rules of this Court reads,

in part:

A petition for a writ of certiorari will be granted

only for compelling reasons. The following,

although neither controlling nor fully measuring

the court’s discretion, indicate the character of

the reasons the court considers:

(a) a United States Court of Appeals has

entered a decision in conflict with the decision

of another United States Court of Appeals on

the same important matter; has decided an

important Federal question in a way that con-

flicts with a decision by a state court of last

resort; or has so far departed from the accepted

and usual course of judicial proceedings, or

sanctions such a departure by a lower court, as

to call for an exercise of this court’s supervisory

power;

(c) ...A United States Court of Appeals

has decided an important question of federal

law that has not been, but should be, settled by

this court, or has decided an important federal

question in a way that conflicts with relevant

decisions of this court.

Petitioners put forth no compelling reasons for

review of the Seventh Circuit’s decision. There is no

conflict between different circuits. This decision does not

involve federal questions or a departure from prior deci-

sions of this Court or any other court of appeals. The

decision in this case rests solely upon the application of

Wisconsin state law to an alleged termination of employ-

ment cause of action. For that reason, this court should

decline to review this case.

—_—_= —.

Il. THE SEVENTH CIRCUIT’S DECISION PROPERLY

INTERPRETED AND APPLIED WISCONSIN LAW

WHEN DETERMINING WHETHER PETITIONERS

HAD A PROPERTY INTEREST IN THEIR

EMPLOYMENT AS CIRCUIT COURT BAILIFFS.

The existence of a substantive property interest in

employment is ordinarily a question of state law. Board of

Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33

L.Ed.2d 548 (1972). The events giving rise to this litiga-

tion arose in Wisconsin, therefore, the law of that state

applies.

“When called upon to decide the question whether

an employee possesses a property interest in employ-

ment, Wisconsin courts have generally resolved the mat-

ter by providing a simple 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). “Under Wisconsin law, employment at will is the

rule. Absent civil service regulations or laws, or a con-

tract 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, 482 N.W.2d 93, 96, cert. denied, __. U.S. ___, 113 S.Ct.

378, 121 L.Ed.2d 289 (1992).

The Seventh Circuit properly interpreted and applied

Wisconsin law in determining that Petitioners had no

property right in their employment as circuit court bai-

liffs. It is clear from reading the decision of the Seventh

Circuit that their decision was based on the fact that the

petitioners were relying on a court order as opposed to a

contract, collective bargaining agreement or civil service

regulations or laws. The Seventh Circuit began its anal-

ysis by noting that the court order lists the plaintiffs

names and defines their authority and that the order

expires on December 31, 1993. (Emphasis added.) The Sev-

enth Circuit then proceeds to quote the sections of the

Vorwald case that were cited above ix this section. The

Court then states that the “order appointing them to their

positions did contain an expiration date” but that the

order placed no substantive restriction on the county’s or

the appointing judges’ authority to terminate the plaintiff

before the court order expired.

It is clear that the Court of Appeals was addressing a

court order which it did not consider to be a contract,

collective bargaining agreement or civil service regulation

or law. The Court of Appeals also found that the court

order, although it had an expiration date, did not have a

specific date for the termination of employment and did

not have any other substantive restriction on the author-

ity to terminate. This is clearly in conformance with Wis-

consin law regarding employment at will. See, Heinritz v.

Lawrence University, 535 N.W. 2d 81 (Ct. of App. 1995);

Forrer v. Sears, Roebuck & Company, 153 N.W.2d 587,

589-90 (Wis. 1967).

Based on its correct interpretation of Wisconsin law

and the above described analysis, the Seventh Circuit

concluded that no property rights of the Petitioner were

violated. For that reason, there is no basis for review by

this Court.

Ill. THE SEVENTH CIRCUIT’S REFERENCE TO

“EXPLICITLY MANDATORY LANGUAGE” WAS

NOT FATAL TO ITS DECISION THAT THE

COURT ORDER DID NOT CREATE A PROPERTY

INTEREST IN EMPLOYMENT.

In its decision, the Seventh Circuit made passing

reference to the fact that “[nJowhere does the court order

state in ‘explicitly mandatory language’ that the appoint-

ing judges have limited discretion to terminate the plain-

tiffs’ employment at the judges’ will.” The petitioners’

whole argument for certiorari relies on the fact that the

Seventh Circuit made this passing reference to “explicitly

mandatory language”. This reference is not fundamental

or essential to the Seventh Circuit’s decision. The sen-

tence containing that phrase could easily be omitted from

the order and not in any way change the validity of the

Seventh Circuit's decision or the Seventh Circuit's correct

conclusion based on Wisconsin case law, that no property

interest was created by the court order.

In addition, when this court abandoned the use of

“explicitly mandatory language” in the prisoner litigation

context, it very clearly preserved its use in other contexts.

Therefore, contrary to petitioner’s assertion, there is

nothing fatal about the Seventh Circuit’s reference to

“explicitly mandatory language” within the context of a

property interest in employment. In Sandin v. Conner, 515

U.S. __, 132 L.Ed.2d 418, 428, 115 S.Ct. 2538 (1995)

(emphasis added), this court held:

By shifting the focus of the liberty interest

inquiry to one based on the language of a partic-

ular regulation, and not the nature of the depri-

vation, the Court encouraged prisoners to comb

8

regulations in search of mandatory language on

which to base entitlements to various state-con-

ferred privileges. Courts have, in response, and

not altogether illogically, drawn negative infer-

ences from mandatory language in the text of

prison regulations. The Court of Appeals’

approach in this case is typical: it inferred from

the mandatory directive that a finding of guilt

“shall” be imposed under certain conditions the

conclusion that the absence of such conditions

prevents a finding of guilt

Such a conclusion may be entirely sensible in the

ordinary task of construing a statute defining rights

and remedies available to the general public. It is a

good deal less sensible in the case of a prison regula-

tion primarily designed to guide correctional officials

in the administration of a prison.

As indicated above, the Seventh Circuit’s passing

reference to “explicitly mandatory language” did not pro-

vide the basis for its decision that the court order did not

create a property interest in the bailiffs’ employment, and

the use of the term “explicitly mandatory language” in

and of itself does not jeopardize the Seventh Circuit's

decision. For that reason, there are no compelling reasons

for this Court to take this matter on review.

IV. EVEN IF THE SEVENTH CIRCUIT MISIN-

TERPRETED WISCONSIN LAW, THE DECISION

OF THE SEVENTH CIRCUIT WAS CORRECT.

A. The Seventh Circuit Properly Concluded That

Under Wisconsin Law, A Court Order Is Not A

Civil Service Regulation Or Law, Contract Or

Collective Bargaining Agreement.

Even if the Seventh Circuit misinterpreted Wisconsin

law as petitioners have alleged, there is still no compel-

ling reason for this Court to review this matter since the

decision of the Seventh Circuit still is correct in that the

petitioners had no property interest in their employment.

There is no compelling reason to be served by having this

Court review the Seventh Circuit’s decision. Both the

Seventh Circuit and District Court Judge Reynolds relied

on Vorwald v. School Dist. of River Falls, 482 N.W.2d 93, 96,

cert. denied, 506 U.S. 941 (1992). In that case, the Wiscon-

sin Supreme Court held that “absent civil service regula-

tions or laws, or a contract or collective bargaining

agreement, a [public] employee is an employee at will

and has no property interest in employment.” Id.

District Court Judge Reynolds, in his decision,

emphasizes that the plaintiffs were relying on a court

order and that the Vorwald case clearly refers to contracts,

collective bargaining agreements or civil service laws.

Judge Reynolds held that the court order was not a

contract. Judge Reynolds also held that the plaintiffs

never used the word “contract” in their complaint and

never claimed that they had a contract. Judge Reynolds’

decision and the Seventh Circuit’s decision upholding

Judge Reynolds’ order clearly were correct.

A court order is not a contract. The contracts and

collective bargaining agreements that the Wisconsin

Supreme Court refers to in Vorwald are documents that

come out of bargaining between the parties. A contract is

based on a mutual meeting of the minds as to terms

manifested by mutual assent. Goossen v. Estate of Stand-

aert, 525 N.W.2d 314 (Ct. App. 1994). Employment con-

tracts and collective bargaining agreements are the

instruments used when contracting parties wish to place

10

restrictions or abrogate the general employment-at-will

rights of employers in Wisconsin. In Thelen v. Marc's Big

Boy Corp., 64 F.3d 264, 269 (7th Cir. 1995), the court stated:

Wisconsin has a strong presumption in favor of

employment at will. Forrer v. Sears, Roebuck &

Company, 36 Wis. 2d 388, 153 N.W.2d 587, 589-90

(1967). To overcome this presumption, a plaintiff

must show that both parties intended to restrict

the reasons for which an employee could be

discharged.

Thelen makes clear that the court is to examine the

intent of the parties and determine whether the parties

intended to restrict the employer’s rights to discharge an

employee. In the context of a contract or a collective

bargaining agreement, the parties can express their intent

and they can clearly indicate that they are going to

restrict employment at will. The same is not true in a

court order. In this case in particular, the order entitled

“Order Appointing Civilian Bailiffs”, indicates that there

were no parties before the court. This was an administra-

tive order. See State v. Cannon, 221 N.W. 603 (1928). In

issuing this order, the Circuit Court was trying to comply

with § 753.10 of the Wisconsin Statutes which reads, in

part:

(3) 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 certificate

of the judge, compensation equal to that fixed

by the county board.

In appointing the bailiffs, the Circuit Court was

merely designating those people who were authorized by

a en ee eee

11

court order to be officers attending the court. This cer-

tainly was not a document which purported to show the

intent of the parties and nowhere within the court order

does it clearly indicate that there was an intent to restrict

the general provision of employment at will. In fact, Sec.

751.02 Wis. Stats., which specifically addresses the

Court’s power to appoint law clerks and court reporters,

provides in part:

A person appointed by the supreme court or a

justice or court of appeals judge or a circuit

judge serves at the pleasure of the court or the

justice or judge.

Petitioners have not suggested that the court could

not have amended the court order sua sponte or rescinded

the order since it was merely an administrative order. Just

as the court’s inherent authority allowed it to issue the

original order that authority would allow it to amend or

rescind the order.

The conclusion that the court order does not create

any property rights is further reinforced by the fact that

the order does not contain normal and essential employ-

ment terms. The order does not indicate a rate of compen-

sation and does not indicate hours of employment. In

fact, the order does not provide for any mininum number

of hours at all for the bailiffs. The absence of these basic

employment terms clearly demonstrates that this order

was not meant to create any employment or property

rights.

In fact, it was the county board that set the compen-

sation rate of the bailiffs. (Petitioners’ App. p. 42). As

indicated in the petitioners’ argument, these were not full

12

time positions. These were on call positions with no

guarantee of any particular number of hours. (Petitioners’

App. p. 4). The Racine Circuit Court Judges could have

issued another order appointing additional bailiffs and

used bailiffs exclusively from the second order. Nothing

in the original court order or in the law required the local

judges to use any of the petitioners for any specific

number of hours. The above analysis demonstrates how

different this court order is from the contractual arrange-

ment contemplated in Vorwald.

B. The Circuit Court Judges Who Signed The

Order Were Not Authorized To Enter Into An

Employment Relationship On Behalf Of Racine

County Because The Judges Are State

Employees, Not County Agents.

The court order was signed by various state court

judges. In Wisconsin, circuit court judges are not county

employees. Iowa County v. Iowa County Courthouse/Social

Services Employees, Local 413, AFSCME, AFL-CIO, 480

N.W.2d 499 (1992). Circuit court judges in Wisconsin are

state employees:

“State office” means the offices of governor,

lieutenant governor, secretary of state, state

treasurer, attorney general, state superintendent

of public instruction, justice of the supreme

court, court of appeals judge, circuit court

judge, state senator, state representative to the

assembly and district attorney.

Section 5.02(23) Wis. Stats.

Petitioners do not argue that the order in question

made the Bailiffs state employees. Rather, petitioners

iii aaa

13

have always argued that the bailiffs were employees of

Racine County. (Petitioners’ App. pp. 38-42). In fact, a

decision by the Wisconsin Department of Industry, Labor

and Human Relations Employment Compensation Divi-

sion, which the petitioners incorporated in their petition,

found that the bailiffs were county employees and states

as follews:

Moreover, the services of the bailiffs accrued

directly to the county and not to the state. The

court served country [sic] 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. (Peti-

tioners’ App. p. 42).

Clearly, the court order cannot reflect the intent of

the parties, employer and employee, if the court order

was issued by circuit court judges who were not agents of

or authorized by the actual employer, Racine County, to

enter into any kind of employment relationship with the

bailiffs.

Because a court order in Wisconsin is not a civil

service regulation or law, contract or collective bargain-

ing agreement, the court order in question did not create

any property rights in the bailiffs. Because the decisions

of both District Court Judge Reynolds and the Seventh

Circuit were correct, no purpose would be served by

remanding this matter back to the Seventh Circuit.

S

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CONCLUSION

Certiorari should be denied because there are no

compelling reasons for this Court to review this case. The

Seventh Circuit’s decision rests solely upon the applica-

tion of Wisconsin state law to an alleged termination of

employment cause of action. Because the Seventh Circuit

properly interpreted and applied Wisconsin law in this

case, there is no reason to grant the writ of certiorari. The

Seventh Circuit’s passing reference to “explicitly manda-

tory language” was neither fundamental nor essential to

its decision that the circuit court order did not create a

property interest in the bailiff’s employment. Even if the

Seventh Circuit misinterpreted Wisconsin law, the court’s

decision was correct because a court order is not a civil

service regulation or law, contract or collective bargain-

ing agreement. Finally, Wisconsin circuit court judges are

state employees and therefore cannot enter into employ-

ment agreements on behalf of a county. For these reasons,

Racine County respondents respectfully request that the

Court reject petitioners’ request for a writ of certiorari.

Respectfully submitted,

Mark JANIUK

Counsel of Record

LesLIE SCHMERIN

Counsel for Respondents Dennis Kornwolf

and Racine County

Racine County Corporation Counsel

Racine County Courthouse

730 Wisconsin Avenue

Racine, WI 53403

(414) 636-3115