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

DATED AND FILED

December 28, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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),3against the City on November 21, 2019, requesting a 

 

1

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

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.
No. 2020AP1346

3

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 fiftyseven. 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.
No. 2020AP1346

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¶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 crossmotions 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 
No. 2020AP1346

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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 closelyrelated 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 
No. 2020AP1346

6

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 fiftyseven 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. 
No. 2020AP1346

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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 reemployment 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 
No. 2020AP1346

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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 
No. 2020AP1346

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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. 
No. 2020AP1346

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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 reemployment. The applicable retirement age to that re-employment is sixty years. 

Moreover, Miller and Holley still cannot be beneficiaries in receipt of their 
No. 2020AP1346

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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 reemployment 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.
No. 2020AP1346

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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.