Kocken v. Wisconsin Council 40

2007 WI 72, 732 N.W.2d 828, 301 Wis. 2d 266, 2007 Wisc. LEXIS 400, 182 L.R.R.M. (BNA) 2592

• Court: Wisconsin Supreme Court
• Decided: June 14, 2007
• Docket: 2005AP2742
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2003-04).¹

¶ 2. The circuit court for Brown County, Mark A. Warpinski, Judge, granted a permanent injunction to Dennis Kocken, Brown County Sheriff, against the defendants, Wisconsin Council 40 AFSCME, AFL-CIO (the District Council) and Local 1901, AFSCME, AFL-CIO (AFSCME Local 1901) (which represents the Brown County employees who provide food service at the Brown County jail). The circuit court enjoined the defendants from pursuing any type of action before the Wisconsin Employment Relations Commission or seeking injunctive relief insofar as it would affect Sheriff Kocken's ability to hire Aramark Corporation as a food service provider at the Brown County jail. Furthermore, the circuit court ordered AFSCME Local 1901 to withdraw its prohibited practice complaint filed with the Wisconsin Employment Relations Commission with prejudice.

¶ 3. This case arose as a result of Sheriff Kocken's proposal to stop using county employees to prepare meals for the Brown County jail and instead contract with a private food service provider. The issue presented is whether Sheriff Kocken's decision to enter into a contract for the preparation of meals for jail inmates falls within the sheriffs constitutional powers, rights, and duties, and is thus not subject to legislative limitations, including a collective bargaining agreement between Brown County and county employees.²

¶ 4. For the reasons set forth, we hold that the Sheriffs hiring and firing of personnel to provide food service to the county jail is not a time immemorial, principal, and important duty that characterizes and distinguishes the office of sheriff, and as such, is not within the Sheriffs constitutional powers. Rather, the hiring and firing of personnel to provide food service to the county jail falls within the "mundane and commonplace" "internal management and administrative duties"³ not protected by the constitution. Hiring and firing personnel to provide food to inmates is subject to legislative regulation, including collective bargaining under Wis. Stat. § 111.70. The circuit court erred as a matter of law when it concluded that the contract with Aramark at issue is within the sheriffs constitutional prerogative. This error of law rendered the circuit court's judgment an erroneous exercise of discretion.

¶ 5. We therefore reverse the judgment of the circuit court and remand the cause to the circuit court to dismiss Sheriff Kocken's complaint seeking declaratory relief. We also vacate the permanent injunction. AFSCME Local 1901 is no longer restrained from pursuing its complaint filed with the Wisconsin Employment Relations Commission, pursuant to Wis. Stat. § 111.70, the Municipal Employment Relations Act.

I

¶ 6. The parties stipulated to the following facts in the circuit court:

¶ 7. Prior to 2001, food for inmates at the Brown County jail was prepared at the jail by five Brown County Sheriffs Department employees represented by the Teamsters Union. Jail inmates were also involved in all aspects of the food service.

¶ 8. In 2001 Brown County completed construction of a new county jail facility. A decision was made in 2001 to consolidate food preparation for the county mental health center, the county work release center, and the county jail in the new jail facility, although not all the food for the mental health center would be prepared or processed at the jail. The kitchen built in the new jail facility was constructed to have a capacity that would accommodate this consolidated food preparation plan.

¶ 9. As part of this consolidation plan, a new mental health center was to be constructed adjacent to the new jail facility, with a tunnel connecting the two buildings to facilitate, among other services, the delivery of food from the jail to the mental health center. There were no plans to similarly connect the work release center, which would remain located at the old county jail, more than five miles from the new jail facility.

¶ 10. As a result of this consolidation in food services at the jail, the employees preparing food at the jail and at the mental health center became a single group of county employees represented by AFSCME Local 1901. Certain members of AFSCME Local 1901 began preparing food in the jail for jail inmates, for the work release center and for the mental health center, and other members of AFSCME Local 1901 remained engaged in food service activities at the mental health center. A collective bargaining agreement was created between AFSCME Local 1901 and Brown County, which governs the wages, hours, and other conditions of employment of these employees.

¶ 11. The proposed new county mental health center was not built, and there is no plan to connect the existing mental health center with the new jail.

¶ 12. In order to provide food service to the existing mental health center and the work release center, two meal deliveries are made each day, by truck, from the kitchen in the new jail to the mental health center and to the work release center. Dishes are returned from these locations to the jail kitchen.

¶ 13. Dennis Kocken was elected as the sheriff of Brown County in November 2002.

¶ 14. Sheriff Kocken proposed that the food preparation at the Brown County jail be handled as a combination of inmate labor and the services of a private food provider, with the private company overseeing the provision of meals for the inmate population at the jail and the work release center.

¶ 15. Under Sheriff Kocken's plan, the Brown County employees represented by AFSCME Local 1901 who prepare food at the Brown County jail would no longer work at the jail, unless they were independently hired by the private food service company.

¶ 16. On behalf of these Brown County employees, AFSCME Local 1901 demanded that Brown County bargain regarding the decision to subcontract the food preparation at the jail. Brown County refused.

¶ 17. In June 2004, AFSCME Local 1901 filed a complaint with the Wisconsin Employment Relations Commission against Brown County alleging that the County's refusal to bargain constituted a prohibited practice in violation of Wis. Stat. § 111.70(3)(a).⁴

¶ 18. On June 28, 2004, Sheriff Kocken filed a complaint for declaratory relief with the circuit court for Brown County against the District Council.⁵ An amended complaint named AFSCME Local 1901 as an additional party. Sheriff Kocken also sought injunctive relief.

¶ 19. On July 14, 2004, by agreement of the parties, counsel for AFSCME Local 1901 requested a stay of proceedings at the Wisconsin Employment Relations Commission, pending the outcome of the circuit court litigation.

¶ 20. In addition to the stipulated facts, the circuit court made the following findings of fact after receiving the parties' briefs, supporting affidavits, and testimony in connection with the hearing on the preliminary injunction:

• Idle inmates create more problems for the sheriffs staff than inmates who are occupied in some type of activity. Under the present system of meal preparation by the mental health center staff, there is less inmate activity.

• Increasing inmate work in meal preparation would improve morale because inmates would be occupied in productive activity.

• Aramark, which would offer the contract food service under Sheriff Kocken's proposal, would train inmates in food service and maintain a log of such training.

• Meal preparation was formerly a part of the sheriffs budget.

• Savings would be realized by Sheriff Kocken's contracting with Aramark, and Sheriff Kocken intended to use these savings to fill positions, continue training, and replace law enforcement vehicles.

• The former county executive acknowledged that had the then-sheriff refused to go along with the consolidation plan in 2001, the County would have been required to construct two kitchens, one for the new jail and one for the proposed mental health center.

• Approximately one million dollars were diverted from the mental health center construction budget to construct the jail kitchen facility.

¶ 21. In its decision on the preliminary injunction, the circuit court stated that "this record is devoid of any suggestion that anyone attempted to enjoin the Sheriff from the exercise of his constitutionally vested authority of deciding how the meal service was to be provided in 2001. That decision of the Sheriff was accomplished without objection so far as the Court is aware from the record that has been provided."⁶

¶ 22. On November 5, 2004, the circuit court granted Sheriff Kocken a preliminary injunction, finding a likelihood of success on the merits, a likelihood of irreparable harm, and an inadequate remedy at law. The defendants moved for reconsideration of the circuit court's decision; the motion was denied.

¶ 23. On July 8, 2005, the circuit court issued its decision granting a permanent injunction, and on October 31, 2005, the circuit court entered its final judgment and amended order granting Sheriff Kocken a permanent injunction. The defendants appealed this judgment and order.

r-H I — H

¶ 24. A circuit court's decision whether to grant injunctive relief is within the sound discretion of the circuit court.⁷ "Injunctions, whether temporary or permanent, are not to be issued lightly. The cause must be substantial."⁸

¶ 25. This court reviews a circuit court order granting injunctive relief to determine whether the circuit court erroneously exercised its discretion.⁹ A circuit court's discretionary decision will be sustained if the circuit court has examined the relevant facts, applied the proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable court could reach.¹⁰ If in exercising its discretion a circuit court errs in deciding a question of law upon which its exercise of discretion rests, the circuit court has erroneously exercised its discretion.¹¹

¶ 26. In reviewing a circuit court's discretionary decision, an appellate court decides questions of law imbedded in the circuit court's exercise of discretion, including questions of constitutional law, independently of the circuit court but benefiting from its analysis.

¶ 27. In the present case, the determinative question of law governing Sheriff Kocken's request for declaratory and injunctive relief is whether the Sheriffs hiring and firing of personnel to provide food service for the county jail is within the constitutional powers, rights, and duties of the office of sheriff. If the circuit court erred in deciding this question of law, we need not address the other requirements for a permanent injunction.¹²

¶ 28. The circuit court held that AFSCME Local 1901, if allowed to proceed with its complaint before the Wisconsin Employment Relations Commission, would impinge upon a constitutional power of Sheriff Kocken. The circuit court reasoned as follows: The operation of the jail is "one of [the] obvious constitutional duties" of the office of sheriff; "the providing of meals is an essential function of operating a jail just as is having a secured facility;" and "once it has been determined that the Sheriffs actions fall under this constitutional umbrella that it is up to the Sheriff to decide how those services will be provided."

¶ 29. Because the circuit court determined that it was within the constitutional powers, rights, and duties of the sheriff to hire the food service provider for the county jail, the circuit court concluded that Sheriff Kocken could act without interference from the legislature and without limitation by a collective bargaining agreement. Accordingly, the circuit court was satisfied that Sheriff Kocken's request for injunctive relief was warranted.

f — H I — I H-i

¶ 30. In deciding a question of state constitutional law, we turn first to the text of the Wisconsin Constitution.

¶ 31. The Wisconsin Constitution establishes the office of sheriff, provides for the selection and term of the sheriff, places restrictions on the sheriffs holding other partisan office, and creates requirements for the giving of security.

¶ 32. Article VI, section 4(1)(a) of the Wisconsin Constitution states that "sheriffs ... shall be chosen by the electors of the respective counties once in every 2 years."¹³ "When a vacancy occurs in the office of sheriff, the vacancy shall be filled by appointment of the governor and the person appointed shall serve until his or her successor is elected and qualified."¹⁴ The constitution further provides that sheriffs may not hold any other partisan office¹⁵ and that sheriffs may be required by law to renew their security from time to time and, in default of giving such new security, their office shall be deemed vacant.¹⁶

¶ 33. The Wisconsin Constitution does not delineate the powers, rights, and duties of the office of sheriff. The case law has given meaning to the powers, rights, and duties of the office of sheriff protected by the state constitution.

¶ 34. Acknowledging that "the constitution nowhere defines what powers, rights and duties shall attach or belong to the office of sheriff," the court, in 1870 in State ex rel. Kennedy v. Brunst, 26 Wis. 412, 414 (1870), concluded that the framers of the constitution intended the office of sheriff to have "those generally recognized legal duties and functions belonging to it in this country, and in the territory, when the constitution was adopted."¹⁷ The court further explained that "part and parcel of the duties from time immemorial belonging to [the office of sheriff] by law" are constitutionally protected.¹⁸

¶ 35. The court reasoned that unless these "time immemorial" duties were constitutionally protected from interference by others, the constitutional provision securing the people the right to choose sheriffs would become meaningless. This analysis was set forth in Brunst, 26 Wis. at 414-15, as follows:

And it seems to us unreasonable to hold, under a constitution which carefully provides for the election of sheriffs, fixes the term of office, etc., that the legislature may detach from the office its duties and functions, and transfer those duties to another officer. In this case it is said that the legislature has attempted to take the largest share of the duties of sheriff, in point of responsibility and emolument, and to commit it to an officer selected by the county board of supervisors. If the legislature can do this, why may it not deprive the sheriff of all the duties and powers appertaining to his office, and transfer them to some officer not chosen by the electors? It would certainly be a very idle provision of the constitution, to secure to the electors the right to chose their sheriffs, and at the same time leave to the legislature the power to detach from the office of sheriff all the duties and functions by law belonging to that office when the constitution was adopted, and commit those duties to some officer not elected by the people. For this would be to secure to the electors the right to choose a sheriff in name merely, while all the duties and substance of the office might be exercised by and belong to an officer appointed by some other authority.

¶ 36. The Brunst court thus formulated the inquiry into the sheriffs constitutional powers, rights, and duties as an historical one, examining the nature of the office of sheriff as it existed when the constitution was adopted. In later cases, beginning with State ex rel. Milwaukee County v. Buech, 171 Wis. 474, 482, 177 N.W. 781 (1920), the inquiry into the constitutional prerogatives of the office of sheriff continued to focus on the historical attributes of the office, but the court limited the constitutional powers, rights, and duties of the sheriff to only those "immemorial principal and important duties that characterized and distinguished the office."¹⁹

¶ 37. In Buech, the sheriff challenged the application of the civil service law to a deputy as unconstitutional. The Buech court held that the civil service law applied to the sheriffs hiring deputies, although "at common law the sheriff possessed the power to appoint deputies." According to the Buech court, the power to hire does not give character and distinction to the office; it is not a power "peculiar" to the office of sheriff. The state constitution does not, in the words of the Buech court, "prohibitD any legislative change in the powers, duties, functions, and liabilities of a sheriff as they existed at common law."²⁰

¶ 38. The court explained in Heitkemper v. Wirsing, 194 Wis. 2d 182, 189, 533 N.W.2d 770 (1995), that Buech "rejected any interpretations of Brunst which tried to include within the constitutionally protected functions of the sheriff all powers held by the sheriff at the common law. Rather, the [Brunst] court indicated that the test for determining which functions were constitutionally protected was more exacting." The Heitkemper court explained that "internal management and administrative duties," while important, fall within the "mundane and commonplace" duties not protected by the constitution.²¹

¶ 39. Cases addressing the constitutional dimensions of the office of sheriff establish the following criteria for identifying a sheriffs constitutional powers, rights, and duties: certain immemorial, principal, and important duties of the sheriff at common law that are peculiar to the office of sheriff and that characterize and distinguish the office are constitutionally protected from legislative interference.²²

¶ 40. Nevertheless, the constitution does not prohibit all legislative change in the powers, duties, functions, and liabilities of a sheriff as they existed at common law.²³ "[I]internal management and administrative duties. . . [that] neither gave 'character' nor 'distinction' to the office of sheriff... fall within the mundane and common administrative duties of a sheriff which may be regulated by the legislature."²⁴

¶ 41. The court has carefully explained its reasoning for allowing legislative change to certain powers, rights, and duties of a sheriff as follows: If the legislature could not act, "a constitutional amendment would be necessary in order to change the duties of sheriffs in the slightest degree, and in this respect 'the state would be stretched on a bed of Procrustes.' "²⁵

¶ 42. In sum, powers, rights, and duties of the office of sheriff that are "mundane and commonplace" "internal management and administrative" duties, even if they are ever-present aspects of the constitutional office, are not accorded constitutional status.²⁶ To ignore an analysis of whether the duty at issue is mundane and commonplace and whether it is an internal management and administrative duty is to ignore or misread our case law and to risk over-constitutionalizing the powers of the office of the sheriff, in contravention of the framers' intentions.

¶ 43. This traditional constitutional analysis of whether a power, right, or duty of the office of sheriff is immemorial and distinctive (and constitutionally protected) or mundane and commonplace, internal management and administrative (and not constitutionally protected) is easily apparent from the cases and is easy to state. This traditional constitutional analysis is not, however, easy to apply. Each of the cases coming to the court involves an action of the sheriff that is in some way related to a recognized constitutional power, right, and duty of the office, as in the instant case involving the operation of the jail and care of inmates. Some cases have protected the office of sheriff from legislative interference; others have not.

¶ 44. We begin our analysis of the case law by stating that the operation of the jail and the custody and care of jail inmates are part and parcel of the duties from time immemorial belonging to the office of sheriff and are distinctive to the office. In 1870, the Brunst court stated that "[a]mong those duties [of a sheriff], one of the most characteristic and well acknowledged was the custody of the common jail and of the prisoners therein."²⁷ Case law and the opinions of the attorney general have continued to recognize that the operation of the jail is a primary duty of the office of sheriff that "gave character and distinction to the office" at common law and thus is within the constitutional prerogative of the sheriff.²⁸

¶ 45. Aspects of the operation of the jail, however, including the provision of food for inmates, have been governed by statute. As early as 1881, the court held that the sheriff has an obligation to furnish board for those housed at a jail. But the court did not characterize the duty to furnish board as a "time immemorial" task. Rather the court located the sheriffs responsibility in the statutory obligations prescribed by the legislature.²⁹ The court declared that "[t]he duty of furnishing board for persons confined in jail is absolutely imposed upon the sheriff by law."³⁰ The applicable "statute imposes the absolute duty and responsibility upon that officer 'to take the charge and custody of the jail of bis county and the persons therein, and keep them himself, or by his deputy or jailer.' "³¹

¶ 46. Today, Wis. Stat. § 302.37 requires the sheriff to take custody of inmates and provide them with adequate nourishment. Wisconsin Stat. § 302.37(l)(a) states in relevant part:

The sheriff or other keeper of a jail shall constantly keep it clean and in a healthful condition and pay strict attention to the personal cleanliness of the prisoners and shall cause the clothing of each prisoner to be properly laundered. The sheriff or keeper shall furnish each prisoner with clean water, towels and bedding. The sheriff or keeper shall serve each prisoner 3 times daily with enough well-cooked, wholesome food. The county board shall prescribe an adequate diet for the prisoners in the county jail.

¶ 47. Of course, the simple fact that the legislature codified a duty and responsibility of the sheriff, like providing food for jail inmates, does not strip sheriffs of any constitutional protections they may have regarding this duty. Likewise, the simple fact that the task of providing food to inmates in the jail has been a longstanding statutory responsibility of the sheriff does not imbue this duty with constitutional protections.³²

¶ 48. The dispute between the parties in the instant case centers on whether a sheriffs hiring and firing of personnel to provide food service to inmates, including Sheriff Kocken's contracting with a food service provider for jail inmates at the Brown County jail, is within the sheriffs constitutional powers, rights, and duties.³³

¶ 49. Sheriff Kocken insists that the circuit court properly analyzed the law when it found that the provision of food at the jail was within the "time immemorial" duties of the office of sheriff. According to Sheriff Kocken, the case law makes clear that the operation of the jail, including the care of the inmates of the jail, is a constitutional duty of the office of sheriff such that a sheriff is to be afforded full discretion in performing this duty. Sheriff Kocken urges this court to adopt the circuit court's reasoning: Provision of food is a central aspect of caring for inmates and operating the jail, and therefore, the sheriff has sole constitutional responsibility to manage and administer this constitutional task, including hiring the food service provider.

¶ 50. In contrast, the defendants, the District Council and AFSCME Local 1901, contend that the hiring and firing of personnel to provide food service for the county jail is not within the constitutional prerogatives of the office of sheriff and is instead one of the mundane and commonplace internal management and administrative tasks that do not give character and distinction to the office. Accordingly, the defendants argue that the hiring of a food service provider for the county jail can be regulated by the legislature and can be subject to a collective bargaining agreement entered pursuant to the Municipal Employee Relations Act.

¶ 51. We do not approach the question presented by writing on a blank slate. We gain guidance in the instant case about the proper application of the criteria defining the constitutional and non-constitutional powers, rights, and duties of the office of sheriff from prior court decisions that addressed the constitutional prerogatives of the office of sheriff, as well as from the published opinions of the Wisconsin attorney general.³⁴ We first examine cases recognizing the constitutionally protected powers, rights, and duties of the office of sheriff and then the cases declaring certain powers, rights, and duties not constitutionally protected.

¶ 52. The operation of a jail and care of the jail inmates has been recognized as within the constitutional powers of the sheriff, because the operation of the jail gives character and distinction to the office of sheriff. Thus in 1870, the court struck down legislation assigning the entire operation of the jail to an officer other than the sheriff. The court declared unconstitutional a statute making the Milwaukee house of correction the Milwaukee County jail and making the inspector of the house of correction, ex officio, the jailer of the county with exclusive charge and custody of the jail and all prisoners therein. The court held that the legislature could not take from the constitutional office of sheriff a part of the office and transfer it to another government officer who was appointed in a different manner and held a different tenure than that provided for the sheriff by the state constitution.³⁵

¶ 53. Furthermore, the attorney general, in an opinion published in 1979, opined that because of the constitutional nature of the sheriffs authority over the jail, the sheriff could order the county clerk to return a. set of jail keys to the sheriff, even though statutes gave the county board the power to construct and maintain the jail and declared that the county property shall be held by the clerk in the name of the county. The attorney general explained that because the power over the jail "is an important attribute of the constitutional office of sheriff, the county board cannot constitutionally effect a change in the substance of that power by transferring custody of the jail to the county clerk or by requiring the sheriff and the clerk to share custody of the jail."³⁶

¶ 54. Another constitutionally protected power and prerogative of the office of sheriff recognized by the courts is the sheriffs special relationship with the courts. See Wis. Prof'l Police Ass'n v. Dane County, 106 Wis. 2d 303, 305, 316 N.W.2d 656 (1982) (WPPAI). This relationship between the sheriff and the courts is "peculiar to" and "gives character and distinction to" the office of sheriff. The duties performed by the court officer designated by the sheriff are among the principal and important duties that characterize the office of sheriff, and, therefore, the sheriff may not be restricted as to whom he or she appoints to perform the functions.³⁷ The court explained that only the sheriff can designate which deputies can serve as a court officer. " 'Attendance on the Court' is in the same category of powers inherent in the sheriff as is running the jail. Just as . .. the legislature cannot deprive the sheriff of control of the jail, neither can the legislature through a statute authorizing collective bargaining by the county board and a union deprive the sheriff of his authority to select who among his deputies shall act in his stead in attendance on the court."³⁸ The court focused on the "nature of the job assigned rather than the general power of job assignment."³⁹

¶ 55. The sheriffs special relationship with the courts was reinforced recently in a 2006 court of appeals decision. Dunn County v. WERC, 2006 WI App 120, ¶¶ 12-13, 293 Wis. 2d 637, 718 N.W.2d 138. The court of appeals held that a collective bargaining agreement cannot delegate power to the clerk of courts, with priority over the sheriff, in the scheduling, directing, and supervising of deputies serving as court security officers. This delegation of power, held the court of appeals, interferes with the sheriffs constitutional authority in attending on the courts.⁴⁰ "[T]he sheriff cannot be required to delegate to another county official the directory or supervisory authority over attendance upon the court."⁴¹

¶ 56. Again dealing with the sheriffs relationship to the courts, the court of appeals held in Wisconsin Professional Police Ass'n/Law Enforcement Employee Relations Division v. Dane County, 149 Wis. 2d 699, 712, 439 N.W.2d 625 (Ct. App. 1989) (WPPA II), that the sheriffs duty "to execute court-issued arrest warrants to bring before the court a prisoner" was a cardinal and traditional responsibility of the sheriff, giving character to the office of sheriff. Accordingly, the court of appeals concluded that the sheriffs right to enlist'the services of the U.S. Marshal for interstate conveyance of prisoners "may not be limited by a collective bargaining agreement."⁴²

¶ 57. Two other powers, rights, and duties recognized and clearly accepted by the courts as within the constitutional prerogative of the office of sheriff are maintaining law and order and preserving the peace.⁴³ In a case involving this constitutionally protected prerogative of the office of sheriff, the court of appeals has concluded that a sheriff has the right to create a temporary mutual aid unit consisting of various law enforcement officers to address a special emergency, despite the objection of a deputy seeking overtime opportunities under the collective bargaining agreement. The court of appeals explained in Washington County v. Washington County Deputy Sheriffs Ass'n, 192 Wis. 2d 728, 531 N.W.2d 468 (Ct. App. 1995), that "[the sheriffs] assignment of municipal officers to patrol duty normally assigned to deputies was in the reasonable anticipation of a possible emergency situation during Harleyfest and, in this case, was a proper exercise of a sheriffs duty to preserve the peace . . . .”⁴⁴ Again, the court focused on the special "nature of the job assigned rather than the general power of job assignment."⁴⁵

¶ 58. In another case involving the same constitutional prerogative, Manitowoc County v. Local 986B, 168 Wis. 2d 819, 484 N.W.2d 534 (1992), the court concluded that a sheriff had the constitutional right to assign a specially qualified deputy from patrol duty to fill a unique undercover position.⁴⁶ The court explained that "law enforcement and preserving the peace were duties which 'gave character and distinction' to the office of sheriff.. . "⁴⁷ and "undercover detective work is a contemporary method of the exercise of the sheriffs historical duties of maintaining law and order and preserving the peace."⁴⁸ The court emphasized, however, that the "legislature may still regulate the administrative and executive duties of a sheriff, and the collective bargaining agreement will still control wages, hours and conditions of employment."⁴⁹ The court expressly declared that its holding about the undercover agent is narrow and limited to the facts of the case.⁵⁰ Again, the court focused on the special "nature of the job assigned rather than the general power of job assignment.."⁵¹

¶ 59. The court of appeals in Dunn County v. WERC, 2006 WI App 120, ¶ 23, 293 Wis. 2d 637, 718 N.W.2d 138, has explained the limited applicability of the mutual aid case and the undercover agent case. They involve, wrote the court of appeals, "very specific assignments, not day-to-day routine scheduling requirements."⁵²

¶ 60. Other cases demonstrate that not all matters related to the sheriffs powers, rights, and duties to maintain law and order and to preserve the peace are constitutionally protected and within the total discretion of the sheriff. In other words, even when a task is related to a sheriffs constitutional powers, rights, and duties, like maintaining law and order, the sheriff may be subject to legislative regulation in regard to performance of that duty. The court's reasoning has been that many tasks for which a sheriff is responsible that relate to the office's constitutional powers, rights, and duties are nondistinctive, "mundane and commonplace" "internal management and administrative" duties of a sheriff. Such duties do not themselves take on constitutional dimensions and can be regulated by the legislature.

¶ 61. For example, the constitutional prerogative of the office of sheriff to maintain law and order and preserve the peace does not encompass the power to appoint or dismiss deputies.

¶ 62. The appointment and dismissal of deputies are non-distinctive internal management and administrative tasks, in contrast to the constitutional tasks previously described. Although at common law the sheriff had the power or authority to appoint deputies, the court has held that this power "was not a power or authority that gave character and distinction to the office."⁵³ Thus in State ex rel. Milwaukee County v. Buech, 171 Wis. 474, 177 N.W. 781 (1920), the court upheld the constitutionality of a statute providing for a civil service system that included defining and limiting the sheriffs authority to hire and discharge deputies. The court reaffirmed this holding in Heitkemper v. Wirsing, 194 Wis. 2d 182, 533 N.W.2d 770 (1995), stating that "[w]hile internal management and administrative duties such as termination are important, they neither gave 'character' nor 'distinction' to the office of sheriff. Rather, these duties, specifically the power to dismiss, fall within the mundane and common administrative duties of a sheriff which may be regulated by the legislature."⁵⁴

¶ 63. The sheriff is thus subject to civil service requirements in the hiring and discharging of deputies.⁵⁵ A newly elected or reelected sheriff who wishes to dismiss or not to reappoint a previously appointed deputy does not possess the constitutional authority to do so. The sheriff is instead bound by the collective bargaining agreement.⁵⁶

¶ 64. The working environment of the sheriffs office may be regulated by the legislature or may be subject to collective bargaining agreements. The court has declared: "The legislature may still regulate the administrative and executive duties of a sheriff, and the collective bargaining agreement will still control wages, hours and conditions of employment."⁵⁷

¶ 65. Likewise, the attorney general opined that the county board may fix the number and the compensation of all deputy sheriffs, including honorary deputies, without usurping the constitutional powers of the sheriff⁵⁸ In another opinion, the attorney general explained that the administrative aspects of the office of sheriff are not constitutional in nature, emphasizing that "the constitution does not prohibit the Legislature from exercising any control of the powers, duties, functions and liabilities of a sheriff as they existed at common law, and it may regulate many such matters, including the appointment and compensation of his deputies and other subordinates."⁵⁹

¶ 66. An analysis of the case law and opinions of the attorney general demonstrates that just because the office of sheriff has constitutional power over the jail and care of the inmates does not mean that every aspect of the operation of the jail or every aspect of caring for the inmates falls within the sheriffs constitutional powers. Although the sheriff traditionally may have been responsible for providing food to the inmates under his care, the constitutional inquiry does not focus exclusively on whether the sheriff was responsible for food service at common law.⁶⁰ Rather the focus in the constitutional inquiry is on whether the task of hiring and firing personnel to provide food to inmates gives distinction and character to the office of sheriff or whether the task is a mundane and commonplace internal management and administrative duty of the office.

¶ 67. The present case involves a routine assignment of the sheriffs duties related to the operation of the jail and care for inmates. Adhering to case law, we focus on the nature of the job assigned, that is, providing food, rather than the general power of job assignment.⁶¹ The case law and the opinions of the attorney general make clear that hiring and firing personnel to provide food service, including contracting with a food service provider, is more akin to the other employment decisions that this court has previously determined to be mundane and commonplace internal management and administrative duties outside the constitutional powers, rights, and duties of the office of sheriff. Hiring and firing a food service provider is at best ancillary to the constitutional powers, rights, and duties of the office of sheriff to operate the jail and take care of the jail inmates, much like many employment decisions concerning deputies are ancillary to the powers, rights, and duties of the office of sheriff to maintain law and order and preserve the peace. The employment decision in the instant case is not similar to a sheriff's constitutional prerogative to supervise court security officers, enlist the services of the U.S. Marshal for interstate conveyance of prisoners, and assign a deputy to be a unique undercover agent.

¶ 68. Even back when sheriffs, or their wives, single-handedly prepared the food for jail inmates, the sheriff was not known as a butcher, a baker, or a meal-maker. History makes clear that the active preparation and service of food to inmates does not have a "time immemorial" nature that gives character and distinction to the office of sheriff.⁶² Not all operations of a jail fall within the sheriffs constitutional prerogative; each task must be individually analyzed and assessed.

¶ 69. Thus, just as the legislature can prescribe limitations on the sheriffs power to hire or terminate deputies who maintain law and order and preserve the peace, so too can the legislature regulate the employment decisions for food service workers at the county jail.

¶ 70. We are persuaded our conclusion is correct by examining the consequences of adopting Sheriff Kocken's position. If we determined that hiring and firing personnel to provide food for the county jail is in fact a constitutional power of the office of sheriff merely because it is related to the sheriffs constitutional power and duty to operate the jail and care for inmates, then all mundane and commonplace internal management and administrative aspects of the operation of the jail and care of the inmates would similarly become constitutionally protected prerogatives of the sheriff, such that any changes the legislature might want to make to mundane and commonplace internal management or administrative aspects of the operation of the jail and care of inmates might require a constitutional amendment.

¶ 71. Moreover, our decision today has consequences beyond the office of sheriff. Section 4 of Article VI of the state constitution applies not only to sheriffs but also to district attorneys and other officers. A broad characterization of the immemorial and distinctive principles and characteristics of the office of sheriff could be similarly applied to other constitutional offices, further stretching the state on a bed of Procrustes.⁶³

¶ 72. In sum, hiring and firing personnel to provide food service does not fall within the constitutional powers, rights, and duties of the office of sheriff. Having concluded that the selection of a food service provider for the county jail is not within the constitutional powers and duties of the office of sheriff, we hold that the circuit court erroneously exercised its discretion in rendering judgment in favor of Sheriff Kocken. The circuit court erroneously exercised its discretion in granting the permanent injunction when it erred as a matter of law in concluding that the sheriff had constitutionally protected authority to designate a food service provider without limitation by a collective bargaining agreement entered pursuant to the Municipal Employment Relations Act.

¶ 73. Although the constitutional powers and prerogatives of the office of sheriff cannot be limited by collective bargaining agreements,⁶⁴ if a function is "not reserved to the sheriff by the Constitution, then the sheriff may be bound by the collective bargaining agreement entered into between the county and the union by virtue of the Municipal Employment Relations Act (MERA) . .. ,"⁶⁵

¶ 74. We need not comment further on the nature or effect of the collective bargaining agreement. That issue is not before the court. We merely conclude that hiring and firing the personnel to provide food for the Brown County jail is not within Sheriff Kocken's constitutional authority and may be limited by legislation, including the Municipal Employment Relations Act.

¶ 75. For the reasons set forth, we hold that the Sheriffs hiring and firing of personnel to provide food service to the county jail is not a "time immemorial," principal, and important duty that characterizes and distinguishes the office of sheriff, and as such, is not within the Sheriffs constitutional powers. Rather, the hiring and firing of personnel to provide food service to the county jail falls within the "mundane and commonplace" "internal management and administrative duties"⁶⁶ not protected by the constitution. Hiring and firing personnel to provide food to inmates is subject to legislative regulation, including collective bargaining under Wis. Stat. § 111.70. The circuit court erred as a matter of law when it concluded that the contract at issue is within the sheriffs constitutional prerogative. This error of law rendered the circuit court's judgment an erroneous exercise of discretion.

¶ 76. Accordingly, we reverse the judgment of the circuit court and remand the cause to the circuit court to dismiss Sheriff Kocken's complaint seeking declaratory relief. We also vacate the permanent injunction. AFSCME Local 1901 is no longer restrained from pursuing its complaint filed with the Wisconsin Employment Relations Commission, pursuant to Wis. Stat. § 111.70, the Municipal Employment Relations Act.

¶ 77. By the Court. — The order of the circuit court is reversed and the cause remanded.

1 All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

2 The collective bargaining agreement was entered pursuant to Wis. Stat. § 111.70, the Municipal Employment Relations Act. The Municipal Employment Relations Act requires that municipal employers bargain collectively with employees and abide by any agreement reached. City of Janesville v. WERC, 193 Wis. 2d 492, 499, 535 N.W.2d 34 (Ct. App. 1995).

3 Heitkemper v. Wirsing, 194 Wis. 2d 182, 193, 533 N.W.2d 770 (1995); Manitowoc County v. Local 986B, 168 Wis. 2d 819, 820, 484 N.W.2d 534 (1992).

4 Wisconsin Stat. § 111.70(3)(a) states in relevant part: "It is a prohibited practice for a municipal employer individually or in concert with others:... 4. To refuse to bargain collectively with a representative of a majority of its employees in an appropriate collective bargaining unit...."

5 In their answer, the District Council and AFSCME Local 1901 alleged, among other things, that the preparation of food for the jail population was not a constitutional power of the sheriff and that Sheriff Kocken had failed to join a necessary party to the action, the Wisconsin Employment Relations Commission, which had primary jurisdiction to hear the complaint filed by the Brown County employees at issue.

6 Based on these findings, the circuit court concluded as a matter of law that it was within the sheriffs powers, rights, and duties to contract with a food service provider for the county jail, explaining that "[i]t is clear that the Sheriff in the past has determined how he will provide the meals. For example, in 2001, the Sheriff agreed to consolidate the food services with the food services of the Mental Health Center. It was the Sheriffs prerogative, not obligation to involve himself in this joint effort."

The circuit court stated it was basing its legal conclusion of the sheriffs power on the testimony of Ms. Nussbaum, the former county executive, reasoning as follows: "[T]his Court relies on the testimony of Brown County's former County Executive, Ms. Nancy Nusbaum, who testified that had the Sheriff decided not to join in a joint kitchen effort, that it would have been the County's responsibility to have two kitchens: one for the jail and one for the then anticipated new construction of the County's Mental Health Center."

Ms. Nusbaum's actual testimony, however, does not support the circuit court's description of the testimony. Ms. Nusbaum testified that during the discussions of a consolidated kitchen, in which the then-sheriff was involved, no one raised the issue of the constitutional power of the sheriff. Furthermore, she testified that she would have acceded to the then-sheriffs wish to have two kitchens, one in each facility (had he so stated), not because she could not tell the sheriff what to do or because of any constitutional issues, but because it was her practice to seek consensus and not to go forward with a plan if a key player opposed it.

Past practice is not relevant to the sheriffs constitutional authority. Dunn County v. WERC, 2006 WI App 120, ¶ 16, 293 Wis. 2d 637, 718 N.W.2d 138.

7 Hoffmann v. Wis. Elec. Power Co., 2003 WI 64, ¶ 10, 262 Wis. 2d 264, 664 N.W.2d 55.

8 Werner v. A. L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 520, 259 N.W.2d 310 (1977).

9 Hoffmann, 262 Wis. 2d 264, ¶ 10.

10 Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).

11 State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968) ("If a judge bases the exercise of his discretion upon an error of law, his conduct is beyond the limits of discretion.").

12 Before the circuit court can issue a permanent injunction, "a plaintiff must show a sufficient probability that future conduct of the defendant will violate a right of and injure the plaintiff." Pure Milk Prods. Coop. v. Nat'l Farmers Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 (1979). A permanent injunction will not be granted unless there is the threat of irreparable injury that cannot be compensated with a remedy at law. Am. Mut. Liab. Ins. Co. v. Fisher, 58 Wis. 2d 299, 305, 206 N.W.2d 152 (1973). In other words, "[i]n order to warrant an injunction, the injury must be real, serious, material, and permanent, or potentially permanent; the right to the injunction must be clear; and the reasons for granting it strong and weighty." Hartung v. Milwaukee County, 2 Wis. 2d 269, 281, 86 N.W.2d 475 (1957) (quoting 66 C.J.S. Nuisances § 111c, at 875).

13 The constitution was recently amended to provide for the election of sheriffs to four-year terms. See Wis. Const. Art. VI, § 4(l)(b).

14 Wis. Const. Art. VI, § 4(6).

The court concluded that "[t]he office of sheriff, in a certain sense, is a constitutional office; that is, the constitution provides that sheriffs shall be chosen by the electors of the respective counties, once in every two years and as often as vacancies shall happen." State ex rel. Kennedy v. Brunst, 26 Wis. 412, 413-14 (1870).

15 Wis. Const. Art. VI, § 4(3)(a).

16 Wis. Const. Art. VI, § 4(3)(b).

17 Brunst, 26 Wis. at 414.

18 Id. at 413-14; see also Manitowoc County v. Local 986B, 168 Wis. 2d 819, 824, 484 N.W.2d 534 (1992).

19 State ex rel. Milwaukee County v. Buech, 171 Wis. 474, 482, 177 N.W 781 (1920).

20 Id.

21 Heitkemper, 194 Wis. 2d at 193; Local 986B, 168 Wis. 2d at 824, 831 ("The legislature may still regulate the administrative and executive duties of a sheriff.. .. ").

22 Buech, 171 Wis. 2d at 482; see also Local 986B, 168 Wis. 2d at 826-27.

23 Buech, 171 Wis. at 482.

24 Heitkemper, 194 Wis. 2d at 193.

25 Buech, 171 Wis. at 482 (quoted with approval in Heitkemper, 194 Wis. 2d at 190). As the court later explained in Local 986B, 168 Wis. 2d at 824, "Procrustes was a mythological bandit known for placing his victims on an iron bed, tying them to it, and then making them the right length for it by stretching those who were too short and cutting off as much as was necessary from those who were too long." Id. at 826 n.2.

26 Local 986B, 168 Wis. 2d 819, 826. See also Heitkemper, 194 Wis. 2d at 193.

²⁷

28 Buech, 171 Wis. at 482; Brunst, 26 Wis. at 414; 68 Op. Att’y Gen. 330, 332 (Nov. 7, 1979).

29 Bell v. Fond du Lac County, 53 Wis. 433, 434, 10 N.W 522 (1881).

³⁰

31 Id. at 433-34.

32 See Dunn County v. WERC, 2006 WI App 120, ¶ 9, 293 Wis. 2d 637, 718 N.W.2d 138. According to the record, the Brown County sheriff and his wife at one time personally handled food service in the jail.

33 Although Sheriff Kocken states the issue as his constitutional power to choose a meal delivery system, he attempts to justify his ability to select a food service provider as part of a broader power than just the provision of food. According to Sheriff Kocken, this decision about the food service provider has important ramifications: it may generate opportunities for inmate rehabilitation, like training and certification; create fiscal savings; and affect other budgetary considerations. These collateral consequences do not, however, transform our inquiry into whether the sheriff has the constitutional power to design and implement rehabilitative programs at the jail or to reduce expenditures. The parties focus their arguments on the sheriffs duty to provide food, not the ramifications of the decision, and so do we. The question presented by the parties and the non-party briefs is a legal question of whether the sheriff had the ability to choose a food provider for the jail, not whether he made the right choice and not whether the sheriff has powers to implement rehabilitative programs or make budgetary decisions.

34 Attorney General Opinions, whether published or unpublished, are not binding authority on this court. The court may, however, choose to treat them as persuasive authority and gain guidance from their analyses. The Attorney General's Office has published numerous opinions, in a period .spanning over one hundred years, expounding on the constitutional prerogatives of the office of sheriff.

35 Brunst, 26 Wis. at 415. See also Wis. Prof'l Police Ass'n v. Dane County, 106 Wis. 2d 303, 313, 316 N.W.2d 656 (1982) (WPPAI).

36 68 Op. Att'y Gen. 330, 332 (Nov. 7, 1979).

37 These cases focused the inquiry not on the sheriffs power of appointment or the sheriffs ability to assign a task generally, but rather on the nature of the task assigned in order to assess the constitutional nature of the appointment power. WPPA I, 106 Wis. 2d at 312 (it is the "nature of the job assigned [to the appointee] rather than the general power of job assignment which must he analyzed in light of the sheriffs constitutional powers.").

38 WPPA I, 106 Wis. 2d at 313. This case was remanded to the circuit court for a determination of the specific duties of the "court officer" in question, because they were not clear from the record. If the "court officer" did in fact attend to the courts as within the constitutional power of the office of sheriff, then only the sheriff could select these officers.

At common law, the duties of the sheriff were four fold. He was the keeper of the king's peace within the county; he was the king's bailiff; he heard and determined certain causes of action in his judicial capacity; and finally, in his ministerial capacity, he executed all process issuing from the king's superior courts of justice. "It is one of the many duties of the sheriff to attend sessions of particular courts.... The responsibility of the sheriff is limited to the direction of the court. ... When the sheriff attends the court, he attends as an officer of the court.... It is the duty of the sheriff to be present himself, or through a deputy and provide sufficient deputies to carry out the court's orders."

[A]t common law, the sheriff was an officer of the court and obliged to the court's commands. The sheriff remains today subject to the orders of the courts. We conclude that when the sheriff executes an arrest warrant issued by the court to bring a prisoner before the court the sheriff attends upon the court.

Wis. Prof'l Police Ass'n/Law Enforcement Employee Relations Div. v. Dane County, 149 Wis. 2d 699, 706-07, 439 N.W.2d 625 (Ct. App. 1989) (WPPA ID (citations omitted).

39 WPPA I, 106 Wis. 2d at 312.

40 Dunn County v. WERC, 2006 WI App 120, ¶¶ 12-13, 293 Wis. 2d 637, 718 N.W.2d 138.

41 Id., ¶ 14.

42 WPPA II, 149 Wis. 2d at 712.

43 Local 986B, 168 Wis. 2d at 830; WPPA I, 106 Wis. 2d at 313; Andreski v. Indus. Comm'n, 261 Wis. 234, 240, 52 N.W.2d 135 (1952) (a worker's compensation case involving whether the sheriff was on business so that his widow was eligible for compensation).

44 Washington County v. Washington County Deputy Sheriffs Ass'n, 192 Wis. 2d 728, 741, 531 N.W.2d 468 (Ct. App. 1995) (emphasis added).

⁴⁵

46 Local 986B, 168 Wis. 2d at 830.

47 Id. at 828.

48 Id. at 830.

49 Id. at 831.

50 Id. See also Heitkemper, 194 Wis. 2d at 192-93 (interpreting Local 986B narrowly).

⁵¹

52 Dunn County v. WERC, 2006 WI App 120, ¶ 23, 293 Wis. 2d 637, 718 Wis. 2d 138.

⁵³

With no disposition to question the doctrine of [State ex rel. Kennedy v. Brunst], we do not think it should be extended to the extent here urged. We think it should be confined to those immemorial principal and important duties that characterized and distinguished the office. While at common law the sheriff possessed the power to appoint deputies, it was not a power or authority that gave character and distinction to the office. Many other officers as well as sheriffs possessed the power. It was more in the nature of a general power possessed by all officers to a more or less extent, and was not peculiar to the office of sheriff. It should not be held, in our judgment, that the constitution prohibits any legislative change in the powers, duties, functions, and liabilities of a sheriff as they existed at common law. If that were true, a constitutional amendment would be necessary in order to change the duties of sheriffs in the slightest degree, and in this respect, "the state would be stretched on a bed of Procrustes."

⁵⁴

55 Buech, 171 Wis. at 482; see also Brown County Sheriffs Dep't v. Brown County Sheriffs Dep't Non-supervisory Employees Ass'n, 194 Wis. 2d 265, 273-74, 533 N.W.2d 766 (1995).

56 Id. at 269.

57 Local 986B, 168 Wis. 2d at 831. See also Dunn County v. WERC, 2006 WI App 120, ¶ 23, 293 Wis. 2d 637, 718 N.W.2d 138.

58 68 Op. Att'y Gen. 334, 339 (Nov. 8, 1979).

59 77 Op. Att'y Gen. 94, 96 (Apr. 29, 1988). See also 68 Op. Att'y Gen. 334, 339-40 (Nov. 8, 1979).

60 The attorney general opined that there might be a constitutional question whether the legislature could deprive the sheriff of the privilege of electing to feed the inmates himself or by means of the services of his wife and avoided answering the question. 40 Op. Att'y Gen. 140, 143 (May 18, 1951).

⁶¹

62 The provision of food to jail inmates bears little distinction from the provision of food to residents of other institutions, including orphanages, reform schools, state prisons, mental asylums, and poorhouses. For discussion of these other institutions, see Richard N. Current, The History of Wisconsin, Volume II: The Civil War Era, 1848-1873, 186-88, 190-91, 515-18 (William Fletcher Thompson ed., State Historical Society of Wisconsin 1976).

63 For instance, in Schultz v. Milwaukee County, 245 Wis. 111, 13 N.W.2d 580 (1944), the court discussed the constitutional aspects of the office of coroner and applied the standard used for the constitutional prerogatives of the office of sheriff established in Brunst. The court concluded that "the holding of inquests was not such a distinctive and characteristic feature of the office of coroner at the time of the adoption of the constitution as to deprive the legislature of power to create another office and impose the duty to hold inquests upon it." Schultz, 245 Wis. at 121-22.

64 See Heitkemper, 194 Wis. 2d at 193. See also WPPA I, 106 Wis. 2d at 314.

65 Id. at 315.

The collective bargaining agreement at issue in the present case is an "Agreement Between Brown County and the Brown County Mental Health Center Employees Local 1901."

Although not a named party to the agreement, Sheriff Kocken may be bound by it. As we explained in Brown County Sheriffs Department, "[t]he sheriff argues that he should not be bound to the 'agreement to arbitrate' because he is not a party to the collective bargaining agreement. However, the legislature has provided the county, not the sheriff, with the option of adopting § 59.21(8)(b), Stats. Likewise, the county can clearly choose to collectively bargain the terms of employment and suspension, demotion, and dismissal of deputy sheriffs." Brown County Sheriffs Dep't, 194 Wis. 2d at 275-76.

66 Heitkemper, 194 Wis. 2d at 193; Local 986B, 168 Wis. 2d at 820.