Oconomowoc Area Sch. Dist. v. Cota

410 Wis.2d 619

Oconomowoc Area School District, Petitioner-Appellant,

v.Gregory L. Cota, Jeffrey M. Cota and Labor and Industry Review Commission, Respondents-Respondents.^†

Court of Appeals

No. 2022AP1158. Submitted on briefs May 1, 2023.—Decided January 10, 2024.

2024 WI App 8

(Also reported in 3 N.W.3d 736.)

APPEAL from an order of the circuit court for Waukesha County: LLOYD V. CARTER, Judge. Reversed and cause remanded with directions.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Oyvind Wistrom of Lindner & Marsack, S.C., Milwaukee.

On behalf of the respondents-respondents, Gregory L. Cota and Jeffrey M. Cota, the cause was submitted on the brief of Alan C. Olson and Nicholas O. Yurk of Alan C. Olson & Associates, S.C., Milwaukee.

On behalf of the respondent-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of Katy Lounsbury, Madison.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

¶ 1. GUNDRUM, P.J. The Oconomowoc Area School District (District) appeals from an order of the circuit court affirming the decision of the Labor and Industry Review Commission (LIRC). The District contends LIRC erred in determining its termination of the employment of brothers Gregory and Jeffrey Cota violated "the arrest record discrimination prohibition contained in the Wisconsin Fair Employment Act (WFEA)." For the following reasons, we conclude LIRC and the circuit court erred, and we reverse and remand.

Background

¶ 2. The District terminated the Cotas' employment based upon its belief they stole from it by personally retaining funds they received from selling District scrap metal. The brothers challenged their terminations, contending they constituted unlawful employment discrimination based upon each brother's "arrest record," as that term is statutorily defined, because the District fired them based upon each being issued a municipal citation for theft, the municipal prosecutor indicating to the District that he could prevail on the citations if the matter proceeded to trial, and the Cotas agreeing to resolve the matter by paying $500 to the District. LIRC agreed with the brothers, finding that the District had terminated their employment on these bases and concluding that such terminations violated the WFEA. The circuit court upheld LIRC's decision, and the District now appeals to us.

Discussion

¶ 3. For purposes of this appeal, we accept LIRC's finding that the District terminated the Cotas based upon the information it received related to the civil, municipal theft charges initiated against the Cotas. Nonetheless, we reverse because we conclude the WFEA provides no protection against terminations based upon information related to a civil, municipal charge.

[1]

¶ 4. In this employment discrimination case, we review the decision of LIRC and not that of the circuit court, see Rice Lake Harley Davidson v. LIRC, 2014 WI App 104, ¶ 21, 357 Wis. 2d 621, 855 N.W.2d 882, reviewing de novo LIRC's interpretation and application of statutes, Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶ 84, 382 Wis. 2d 496, 914 N.W.2d 21. If we determine, as we do, that LIRC has "erroneously interpreted a provision of law and a correct interpre- tation compels a particular action," we are to "set aside or modify [LIRC's] action." Wis. Stat. § 227.57(5) (2021–22).¹

[2–6]

¶ 5. When reviewing statutory language, as we do here, we "ascertain and apply the plain meaning of the statutes as adopted by the legislature." See White v. City of Watertown, 2019 WI 9, ¶ 10, 385 Wis. 2d 320, 922 N.W.2d 61.

We interpret the relevant words of the statute in accordance with their "common and approved usage"; however, "technical words and phrases and others that have a peculiar meaning in the law" are "construed according to such meaning." See Wis. Stat. § 990.01(1). To determine common and approved usage, we consult dictionaries. See State v. McKellips, 2016 WI 51, ¶ 32, 369 Wis. 2d 437, 881 N.W.2d 258 (citing State v. Sample, 215 Wis. 2d 487, 499–500, 573 N.W.2d 187 (1998)). To determine the meaning of legal terms of art, we consult legal dictionaries. State v. Schaefer, 2008 WI 25, ¶¶ 29–31, 308 Wis. 2d 279, 746 N.W.2d 457 (consulting Black's Law Dictionary to determine the meaning of "discovery").

We read the relevant words of the statute "in the context in which … [they] are used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes." James v. Heinrich, 2021 WI 58, ¶ 20, 397 Wis. 2d 517, 960 N.W.2d 350 (quoting [State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110]). We also consider traditional canons of construction, which serve as "helpful, neutral guides"for our analysis. Id., ¶ 23 n.12 (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 61 (2012)).

Sanders v. State of Wisconsin Claims Board, 2023 WI 60, ¶¶ 14–15, 408 Wis. 2d 370, 992 N.W.2d 126 (second alteration added). Consideration of "the structure of the statute in which the operative language appears" is also important in interpreting the meaning of a statute. Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 6. Wisconsin Stat. § 111.322 of the WFEA provides: "Subject to [Wis. Stat. §§] 111.33 to 111.365, it is an act of employment discrimination… (1) To refuse to hire, employ, admit or license any individual, [or] to bar or terminate from employment… any individual… because of any basis enumerated in [Wis. Stat. §] 111.321." Section 111.321 provides: "Subject to [§§] 111.33 to 111.365, no employer … may engage in any act of employment discrimination … against any individual on the basis of… arrest record …" Wisconsin Stat. § 111.32(1) provides:

"Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

(Emphasis added.)

[7, 8]

¶ 7. The key question for this appeal is whether the legislature intended the above statutory provisions to provide employment-discrimination protection in connection with not only arrest-record information related to criminal offenses but also such information related to civil offenses—like the civil, municipal theft charges issued against the Cotas. To answer this question, we must determine what the legislature intended when it included the phrase "or other offense" in Wis. Stat. § 111.32(1).² We conclude the legislature intended this phrase—and these statutory provisions—to protect only with regard to criminal-offense information, and thus, the District's termination of the Cotas based on the noted civil, municipal offense information did not constitute unlawful employment discrimination.

¶ 8. To begin, we note that an "arrest" is generally associated with taking a person into custody in connection with a criminal charge, not a civil one. As Garner's Dictionary of Legal Usage recognizes, "arrest; apprehend; detain"—all terms or variations of terms used in Wis. Stat. § 111.32(1)—"share the sense 'to limit someone's freedom by holding in custody, esp. as an early step in a possible criminal prosecution.' Arrest is the general term for seizing and holding a person in custody by legal authority, especially for purposes of pursuing a criminal charge." Arrest, Garner's Dictionary of Legal Usage (3rd ed. 2011) (emphasis omitted); see also Arrest, Webster's Third New International Dictionary (unabr. 1993) ("the taking or detaining of a person in custody by authority of law"). Along those lines, § 111.32(1) provides that "'[a]rrest record' includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried"—language that strongly suggests the legislature contemplated criminal offenses when it thereafter added "for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority," as all of these "[a]rrest record" actions are either exclusively or more commonly associated with criminal offenses, not civil, municipal ones. (Emphasis added.)

¶ 9. Considering "or other offense" "in relation to the language of surrounding or closely-related statutes," Kalal, 271 Wis. 2d 633, ¶ 46, we observe Wis. Stat. § 111.335(2)(b) to be insightful.

¶ 10. Wisconsin Stat. §§ 111.321 and 111.322 both begin with "[s]ubject to [§§] 111.33 to 111.365." And, Wis. Stat. § 111.335(2)(b), which §§ 111.321 and 111.322 are "[s]ubject to," correspondingly begins with "[n]otwithstanding [§] 111.322." Thus, these statutes are unquestionably "closely-related." Section 111.335(2)(b) then continues:

[I] t is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity, except as provided in sub. (4)(a).

(Emphasis added.) Subsection (4)(a) provides:

It is employment discrimination because of arrest record for a licensing agency to refuse to license any individual under sub. (2)(b) or to suspend an individual from licensing under sub. (2)(b) solely because the individual is subject to a pending criminal charge, unless the circumstances of the charge substantially

relate to the circumstances of the particular licensed activity and the charge is for any of the following:

1. An exempt offense.³

2. A violent crime against a child.

Sec. 111.335(4)(a) (emphasis added). The legislature's inclusion of the word "criminal" in §§ 111.335(2)(b) and 111.335(4)(a) without also including the word "civil" or perhaps even "municipal" indicates its use of the phrase "or other...