James E. Miller, Jr. v. City of Milwaukee

2022 WI App 3
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2020AP1346

Complete Title of Case:

JAMES E. MILLER, JR. AND MARION HOLLEY,

PLAINTIFFS-RESPONDENTS,

V.

CITY OF MILWAUKEE AND MILWAUKEE EMPLOYEES' RETIREMENT
SYSTEM,

DEFENDANTS-APPELLANTS.

Opinion Filed: December 28, 2021
Submitted on Briefs: June 9, 2021
Oral Argument:

JUDGES: Brash, C.J., Donald, P.J., and Dugan, J.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendants-appellants, the cause was submitted on the
briefs of Patrick J. McClain of the City of Milwaukee in Milwaukee.

Respondent
ATTORNEYS: On behalf of the plaintiffs-respondents, the cause was submitted on the
brief of William R. Rettko of Rettko Law Offices, S.C. in Brookfield.
2022 WI App 3

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 28, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2020AP1346 Cir. Ct. No. 2019CV8924

STATE OF WISCONSIN IN COURT OF APPEALS

JAMES E. MILLER, JR. AND MARION HOLLEY,

PLAINTIFFS-RESPONDENTS,

V.

CITY OF MILWAUKEE AND MILWAUKEE EMPLOYEES' RETIREMENT

SYSTEM,

DEFENDANTS-APPELLANTS.

APPEAL from an order of the circuit court for Milwaukee County:
TIMOTHY M. WITKOWIAK, Judge. Reversed and cause remanded.

Before Brash, C.J., Donald, P.J., and Dugan, J.
No. 2020AP1346

¶1 DUGAN, J. The City of Milwaukee and Milwaukee Employees’
Retirement System1 (collectively the City) appeal an order of the circuit court
granting summary judgment in favor of James E. Miller, Jr. and Marion Holley.
Miller and Holley, two former police officers with the City, commenced this action
against the City arguing that they were entitled to begin collecting their retirement
benefits at the age of fifty-seven. The City disagrees and argues that Miller and
Holley were not entitled to collect retirement benefits until the age of sixty because
Miller and Holley returned to employment with the City as general city employees,2
thereby changing the minimum service retirement age applicable to both Miller and
Holley from fifty-seven to sixty.

¶2 For the reasons set forth herein, we agree with the City, and we
conclude that Miller and Holley are not entitled to receive retirement benefits until
age sixty as a result of their re-employment under the classification as general city
employees. We further conclude that Miller and Holley had no vested right in the
minimum service retirement age applicable to police officers. Accordingly, we
reverse the order of the circuit court and remand with directions to grant summary
judgment in favor of the City.

BACKGROUND

¶3 Miller and Holley commenced this action under WIS. STAT.
§ 806.04(2) (2019-20),3 against the City on November 21, 2019, requesting a

We note that the Milwaukee Employees’ Retirement System is also identified as the
1

Milwaukee Employes’ Retirement System. For purposes for this appeal, we use ERS.
2
The parties do not dispute the classification of Miller and Holley as general city
employees when they returned to employment.
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
No. 2020AP1346

declaratory judgment that they were entitled to begin collecting the retirement
benefits that they earned during their service as police officers at the age of fifty-
seven. The retirement benefits claimed were a monthly deferred retirement
allowance and a lump-sum Global Pension Settlement bonus. Miller claimed a
monthly allowance of $2,260.96 and a lump-sum payment of $13,314.39. Holley
claimed a monthly allowance of $724.01 and a lump-sum payment of $4,263.56.

¶4 It is undisputed that Miller and Holley served as police officers for the
City, and Miller and Holley became members of the ERS as a result of their
employment. Miller began his employment with the City as a police officer in 1986
and left his employment in 2004. Holley began his employment with the City as a
police officer in 1993 and left his employment in 2001. At the time that Miller and
Holley left their employment as police officers, neither had reached the “minimum
service retirement age” for “policemen” of fifty-seven years old. Milwaukee City
Charter (MCC) § 36-05-1-b (2013). Further, both Miller and Holley elected the
deferred retirement option provided under MCC § 36-05-6-d-2, to leave their
“accumulated contributions in the fund” until they reached the minimum service
retirement age.

¶5 Subsequent to leaving employment as a police officer, Miller accepted
a part-time position in the Milwaukee Public Schools (MPS), where he worked from
2009 to approximately 2015. Holley accepted a subsequent position with the City
and worked for the City’s Department of Public Works (DPW) for a short period of
time beginning in May 2017. At the time that both accepted subsequent
employment with the City, neither had reached the age of fifty-seven. Additionally,
neither had reached the age of fifty-seven upon leaving their subsequent
employment with the MPS or the DPW.

3
No. 2020AP1346

¶6 Miller received a notification from the ERS on April 7, 2016, that he
would begin receiving his retirement benefits when he turned sixty years old, and
Holley was similarly notified by the ERS on September 14, 2017, that he would
begin receiving his retirement benefits when he attained sixty years of age. Miller
and Holley then filed this action for declaratory judgment because they contend that
they had a vested right to begin receiving their retirement benefits earned from their
employment as police officers at age fifty-seven.

¶7 The parties agreed that there were no factual disputes and filed cross-
motions for summary judgment. The circuit court granted summary judgment in
favor of Miller and Holley and found that they were entitled to begin collecting the
benefits that they accrued as police officers when they reached fifty-seven years old.
The circuit court found that the MCC allowed Miller and Holley to return to
employment with the City and “earn additional benefits at the rate and on the terms
and conditions set for those new benefits while preserving the previously earned
benefits at the terms and conditions previously set for those earned benefits.” The
circuit court reasoned that the minimum service retirement age of fifty-seven for
police officers was one of those preserved terms and conditions; therefore, Miller
and Holley had a vested right in their minimum service retirement age of fifty-seven.
The circuit court further reasoned that the applicable minimum service retirement
age could not be changed from fifty-seven to sixty without Miller and Holley
consenting to the change. The City appealed.

DISCUSSION

¶8 On appeal, the City argues that the circuit court misinterpreted the
provisions of the MCC when it granted summary judgment in favor of Miller and
Holley on the basis that they had a vested right to begin collecting benefits at age

4
No. 2020AP1346

fifty-seven. “We independently review whether the circuit court correctly granted
summary judgment[.]” Stoker v. Milwaukee Cnty., 2014 WI 130, ¶16, 359 Wis. 2d
347, 857 N.W.2d 102. Summary judgment shall be rendered if “there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” WIS. STAT. § 802.08(2).

¶9 Additionally, the interpretation of a municipal ordinance is a question
of law that we review de novo applying the same principles used in statutory
interpretation. Milwaukee Dist. Council 48 v. Milwaukee Cnty., 2019 WI 24, ¶11,
385 Wis. 2d 748, 924 N.W.2d 153. “[S]tatutory interpretation ‘begins with the
language of the statute. If the meaning of the statute is plain, we ordinarily stop the
inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (citation omitted). We give statutory language “its
common, ordinary, and accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special definitional meaning.” Id. In
addition, “statutory language is interpreted in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶46.
“[T]he purpose of statutory interpretation is to determine what the statute means so
that it may be given its full, proper, and intended effect.” Id., ¶44.

¶10 The parties dispute the interpretation of the provisions of Chapter 36
of the MCC that govern the ERS and, in particular, those provisions that govern the
deferred retirement option provided to ERS members found in MCC § 36-05-6-d.
Under the deferred retirement option, a member of the ERS who “separates from
service” before becoming eligible for retirement has two options: (1) withdraw his
or her “accumulated contributions” in the manner provided for members who cease
to be employees except by death or retirement or (2) elect to “leave accumulated

5
No. 2020AP1346

contributions in the fund until the member shall attain minimum service retirement
age.” MCC § 36-05-6-d. Under the second option, when the member reaches the
minimum service retirement age, “the member shall be entitled to a retirement
allowance which shall be calculated in the same manner as specified in sub. 1.”4

¶11 However,

[s]hould a member who has elected a deferred retirement
subsequently return to service prior to attaining the
minimum service retirement age, the member shall again
become an active member of this retirement system and the
credits for service which he or she had at the time of such
separation shall be restored to the member. Upon
subsequent retirement the member shall be credited with his
or her service as a member subsequent to his or her last
restoration to membership and the member shall receive an
allowance as if the member were a new member; and in
addition the member shall receive an allowance in respect of
service prior to his or her last restoration to service
computed on the formula in effect at the time he or she first
left such service[.]

MCC § 36-5-6-d (emphasis added).

¶12 Miller and Holley argue that they were entitled to begin collecting any
retirement benefits earned during their employment as police officers at age fifty-
seven because that was a term and condition of their retirement benefits to which
they had a vested right under MCC § 36-13-2. The City, on the other hand, argues

4
The “same manner as specified in sub. 1” refers to MCC § 36-05-1 that governs what the
City terms “Normal Service Retirement” where an employee reaches the applicable minimum
service retirement age and chooses to retire. The deferred retirement section applicable here covers
those who leave employment with the City prior to reaching the minimum service retirement age
and are thus ineligible for Normal Service Retirement under “sub. 1.” See MCC § 36-05-6-d.
Accordingly, those who are covered by the deferred retirement section are not considered to have
retired from City employment. Instead, they are considered to have left employment with the City
prior to retirement. As the deferred retirement section states, employees under this section are
considered to have “separate[d] from service”—not retired—and their status as retired is
“deferred.” MCC § 36-05-6-d. Therefore, we also reject Miller and Holley’s contention that those
who elect deferred retirement are in fact retired while they await receipt of their benefits.

6
No. 2020AP1346

that the subsequent re-employment of Miller and Holley with the MPS and the
DPW, respectively, triggered the additional language of the deferred retirement
section and transformed Miller and Holley into active members of the ERS with the
new minimum service retirement age of sixty. In other words, the City contends
that Miller and Holley were reclassified from policemen to general city employees
upon their re-employment with the MPS and the DPW and thus became disqualified
from receiving retirement benefits at age fifty-seven as former police officers.

¶13 We agree with the City, and we conclude that Miller and Holley are
unable to collect retirement benefits until reaching age sixty because their re-
employment with the MPS and the DPW reclassified them and changed the
applicable minimum service retirement age. Interpreting the plain language of the
deferred retirement section in its proper context, we conclude that it is clear that
Miller’s and Holley’s decision to return to employment with the MPS and the DPW
delayed their receipt of benefits until they reach the age of sixty, and any other result
creates internal inconsistencies within the ERS such that the provisions are rendered
inoperable. As such, Miller and Holley had no vested right in the minimum service
retirement age of fifty-seven.

¶14 The MCC clearly states that the “minimum service retirement age”
shall be fifty-seven for policemen and sixty for general city employees: “The
minimum service retirement age shall be, in the case of firemen and policemen, age
57, for members enrolled in the retirement system prior to January 1, 2014, age
60[.]” MCC § 36-05-1-b. “Policemen” is defined as “a person first employed on or
after July 30, 1947, in the police department whose duty it is to preserve peace and
good order of the city, having the power of arrest without warrant.” MCC § 36-02-
24. A “general city employee” is defined as “[a]n employee of the city or a city
agency who is not a policeman or fireman.” MCC § 36-02-17. Miller and Holley

7
No. 2020AP1346

argue, the retirement age applicable to police officers applies to them because they
were police officers with the City at the time they became members of the ERS and
thus that retirement age was a vested right and that remained the age applicable to
their benefits despite their re-employment with the City.

¶15 We agree that prior to the time that Miller and Holley separated from
service as police officers, they were active members of the ERS as policemen with
an applicable minimum service retirement age of fifty-seven. Their decision to
separate from service as police officers then transformed them into inactive
members of the ERS with the same minimum service retirement age of fifty-seven,
as there was no other applicable retirement age. See MCC § 36-05-6-d-2 (indicating
members with four years of service who then leave service are eligible to defer their
retirement until the applicable retirement age); see also MCC § 36-03-5
(terminating membership upon receipt of benefits). Should they have remained
separated from employment with the City without accepting additional
employment, this age would have remained the applicable minimum service
retirement age until they became eligible to retire and collect their retirement
benefits under the deferred retirement option. See MCC § 36-05-6-d.

¶16 However, neither Miller nor Holley remained separated from service
with the City and instead, both became general city employees when they accepted
their subsequent employment with the MPS and the DPW. See MCC § 36-02-17
(defining a “general city employee” as “[a]n employee of the city or a city agency
who is not a policeman or fireman”). As described in the deferred retirement
section, re-employment with the City reactivated their once inactive status as
members in the ERS, and as members whose inactive service as policemen had been
turned into “active service” as general city employees, they were now provided with

8
No. 2020AP1346

the new minimum service retirement age of sixty. See MCC § 36-05-1-a; see also
MCC § 36-05-6-d.

¶17 Further, as the deferred retirement section also clearly states, their
“allowance” for their time spent as police officers was delayed until “subsequent
retirement” from their re-employment with the MPS and the DPW. MCC § 36-05-
6-d clearly splits the retirement benefits afforded to those who accept subsequent
employment with the City prior to reaching the minimum service retirement age
into two allowances—one for prior service and one for service upon re-employment.
The receipt of both of these allowances are also clearly made available upon
“subsequent retirement.”

¶18 In this case, “subsequent retirement” from both Miller’s and Holley’s
re-employment with the City does not occur until age sixty, which is the minimum
service retirement age applicable to general city employees. Thus, both the
allowances—one for their prior service as police officers and one for their service
as general city employees—will become available at the time Miller and Holley
subsequently reach age sixty. The deferred retirement section of the MCC does not
create a staggered release of retirement benefits—one for prior service and one for
new service—as Miller and Holley contend. Thus, the plain language indicates that
there is one time for release of retirement benefits, not two as would be the case if
the interpretation as argued by Miller and Holley applied.

¶19 Moreover, the interpretation advanced by Miller and Holley would
create an internal inconsistency within Chapter 36. “Persons who are receiving a
retirement allowance under any provision of this chapter” are not eligible to be
members of the ERS. MCC § 36-03-6-g. Further, should a member become a
beneficiary “he [or she] shall thereupon cease to be a member.” MCC § 36-03-5.

9
No. 2020AP1346

If this court were to accept Miller and Holley’s interpretation, the result would be
that they could be both active members who are re-employed with the MPS and the
DPW and also inactive members receiving benefits earned during a prior period of
employment with the City. However, such a result is not allowed under the plain
terms of Chapter 36 defining membership in the ERS. Thus, to interpret the deferred
retirement section in its context and as part of the larger whole, see Kalal, 271
Wis. 2d 633, ¶46, we must conclude that Miller and Holley’s re-employment with
the City made them ineligible to also receive retirement benefits earned from their
employment as police officers because their re-employment made them active
members of the ERS and precluded them from simultaneously being beneficiaries.

¶20 In reaching its decision, the circuit court emphasized that both Miller
and Holley left their re-employment with the MPS and the DPW before reaching
age fifty-seven. Therefore, the circuit court reasoned that Miller and Holley could
begin collecting retirement benefits related to their employment as police officers
and then wait until reaching age sixty to begin collecting any benefits related to their
employment as general city employees.

¶21 We are not persuaded that this fact changes the outcome. Despite the
age at which Miller and Holley left employment with the MPS and the DPW, Miller
and Holley still triggered the deferred retirement section applicable to those who are
re-employed with the City. These provisions are clear that once re-employed with
the City, there is one allowance upon subsequent retirement from the re-
employment. The applicable retirement age to that re-employment is sixty years.
Moreover, Miller and Holley still cannot be beneficiaries in receipt of their

10
No. 2020AP1346

retirement benefits as police officers and inactive members of the ERS awaiting any
retirement benefits from their employment as general city employees.5

¶22 Miller and Holley further argue that they had a vested right to begin
receiving retirement benefits earned as police officers at the age of fifty-seven. In
making this argument, they contend that the minimum service retirement age is one
of “the terms and conditions” referenced in MCC § 36-13-2 to which Miller and
Holley were granted a vested right “at the date of the commencement of their
membership.” We are not persuaded that any such vested right in the minimum
service retirement age exists. In fact, to conclude that Miller and Holley have a
vested right in collecting retirement benefits at the age of fifty-seven would be to
look only at the first “terms and conditions” set forth in MCC § 36-05-6-d-2 and
ignore the remaining terms and conditions set forth in the deferred retirement
section applicable to re-employment with the City. However, a proper interpretation
requires analyzing all the terms and conditions in Chapter 36 and how they operate
together.

¶23 Notably, this case concerns only the timing of when Miller and Holley
can begin collecting any retirement benefits earned during their service as police
officers. As the City points out, the amount of benefits is not at issue, and the City
does not argue that Miller and Holley are entitled to a lesser amount or that the
multiplier that applies to the credits earned for police service no longer applies. In
fact, the City agrees with Miller and Holley that they have a right to have their
benefits earned for their service as police officers calculated the same way and in

5
There is no mention of any retirement benefits Miller and Holley earned in their re-
employment with the MPS and the DPW, and we express no opinion about these benefits.
However, any benefits Miller and Holley may have earned does not change the outcome of this
case regarding the age at which they can begin collecting the benefits earned as police officers who
are subsequently re-employed with the City.

11
No. 2020AP1346

the same amount from when they left the police force because the deferred
retirement section provides that the allowance attributed to prior service be
“computed on the formula in effect at the time he or she first left such service.” See
MCC § 36-05-6-d-2. Thus, this dispute focuses solely on when Miller and Holley
can begin collecting their retirement benefits and has nothing to do with the amount
to which Miller and Holley will eventually be entitled.

CONCLUSION

¶24 In sum, Miller and Holley are not entitled to receive retirement
benefits until age sixty as a result of their decision to return to employment with the
City as general city employees. Thus, we agree with the City’s position, and we
consequently reverse the order of the circuit court granting summary judgment in
favor of Miller and Holley and remand this matter for entry of summary judgment
in favor of the City.

By the Court.—Order reversed and cause remanded.

12