Pasko v. City of Milwaukee, 2002 WI 33, 252 Wis. 2d 1

Summary

The Wisconsin Supreme Court held that claim preclusion did not bar the Milwaukee Police Association's mandamus action because the union was not in privity with the individual officers who brought an earlier action. The court further held that Wis. Stat. § 62.50(9), standing alone, did not impose a positive and plain duty to fill police alarm operator vacancies by promotion. The court remanded for factual determinations concerning the collective bargaining agreement, the existence of vacancies, and whether the vacancies constituted newly created offices.

Holdings

1. Claim preclusion did not bar the Association's action because the Association was not in privity with the individual officers who brought the prior action, and applying preclusion would be unfair to the Association and its other members.
2. Wis. Stat. § 62.50(9) does not, standing alone, create a positive and plain duty requiring the City to fill police alarm operator vacancies by promotion as they occur.
3. The Association's entitlement to mandamus could not be determined on the existing record; remand was required to determine whether the collective bargaining agreement required promotions, whether vacancies existed, and whether those vacancies were newly created offices.

Questions Presented

1. Whether the Milwaukee Police Association's mandamus action was barred by claim preclusion because individual union members had previously litigated related claims.
2. Whether Wis. Stat. § 62.50(9), standing alone, created a positive and plain duty requiring the City to fill police alarm operator vacancies by promotion as they occurred.
3. Whether the record established that the collective bargaining agreement, alone or in conjunction with Wis. Stat. § 62.50(9), required promotions and that qualifying vacancies existed.

Disposition

reversed_and_remanded