# Opposition Brief — Flynn v. Kornwolf

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 930

## Text

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.
+

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
+

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.

+

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.

+

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.

+

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

14

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1309%3A2. Public record. Not legal advice.