State Bar of Wisconsin

New GLD President Pledges Continued Active Leadership

By Mike Kernats

The poet Robert Browning wrote, “A man’s reach should exceed his grasp.” I’d like to let you know what I’ll be reaching for during my two-year term as president of the Government Lawyers Division.

I want to ensure that the State Bar provides services that government lawyers want and need; and that government lawyers receive good value for the dues they pay. As GLD president, I will serve two-year terms on the Board of Governors and the Executive Committee. These posts provide an excellent opportunity to influence State Bar policy on behalf of government lawyers. In these difficult times, government lawyers need all the help we can get, including support from the State Bar.

I’m happy to report that the State Bar has recently provided outstanding assistance on three important matters. The Bar supported government lawyers in restoring positions and funding for administrative law judges who handle discrimination complaints at the Equal Rights Division; in restoring funding for the Department of Justice to forestall attorney layoffs; and in resisting attempts to consolidate most state agency attorneys in a single legal services division at the Department of Administration. The Bar acted swiftly and decisively when we needed its support on these critical issues.

I will work to ensure that the State Bar acts on the preference of the majority of government attorneys for voluntary membership. Specifically, I will press the Board of Governors to vote on whether to petition the Wisconsin Supreme Court to change from mandatory to voluntary membership. A recent State Bar survey found that about two-thirds of government lawyers, as well as a majority of all Wisconsin lawyers, favor a voluntary bar. The current Bar president, as well as the recently elected Bar president-elect, both openly support voluntary membership. There has never been a better opportunity to address this important matter. Although membership in the State Bar is mandatory, membership in the Government Lawyers Division is voluntary and without additional cost.

I want to be clear about my own personal preference. If State Bar membership was voluntary, I would choose to join. I chose to join the Bar during the early 1990s when membership was voluntary. But I think that members should be able to choose whether they want to belong to the Bar, and survey results prove that a significant number of government attorneys feel that way too. I would like to encourage government lawyers to voluntarily choose to belong to the Bar by ensuring that the Bar provides services that government lawyers value, and by keeping Bar dues and fees reasonable. This includes enlisting the Bar’s support in persuading government employers to provide fair compensation and benefits, and reasonable job security.

I’d like to continue the GLD board’s close relationship with the unions representing government lawyers and to develop an informal government lawyers caucus with the 11 other government lawyers who are currently members of the Board of Governors.

Finally, I want to praise Jim Godlewski and Bill Domina, who served as the GLD presidents during my previous four years on the board of directors. Jim and Bill are outstanding leaders who set a high standard, and they have taught me a lot. As I deal with the difficult issues ahead, I will ask myself, “What would Jim and Bill do?” Fortunately, Bill Domina was recently elected to the Board of Governors and the Executive Committee, and he continues as the GLD’s past-president so he will continue to work on behalf of government lawyers. I also value the support of our other GLD officers and directors, veterans Melanie Swank, David Nispel, Ann Molitor, Kathleen Chung, and Lennie Lehman; new directors Meighan Anger, Rhonda Gorden, Miriam Horwitz, and Mary Schanning; and especially our indispensable Bar staff liaisons Pat Morgan and Beth Drake.

Top

Cases of Interest to Government Lawyers

Two cases are presented below regarding Public Records Law with concern of public access to government records and public employee personal e-mail messages sent on public computers.

Public access to government employees’ records

Milwaukee Journal Sentinel v. DOA

By Mike Kernats, GLD President

Four unions representing a large number of state government workers negotiated provisions in their collective bargaining agreements restricting the release of the names, home addresses, and home telephone numbers of their union members. These unions are the Wisconsin State Employees Union, Wisconsin Professional Employees Council, Wisconsin Science Professionals, and Wisconsin Law Enforcement Association.

Two newspapers (the Milwaukee Journal Sentinel and the Lakeland Times) requested information, including the names, of various state employees from the Department of Administration and the Department of Natural Resources. The Milwaukee Journal Sentinel asked for a list of employees prohibited from driving state vehicles. The Lakeland Times requested a list of DNR workers and their salaries.

These state agencies provided some of the requested information, but redacted the names of their union employees because of the restrictions contained in the collective bargaining agreements. The newspapers filed a petition for mandamus in the Dane County Circuit Court, asking the court to order the state agencies to disclose the names of the union employees. The largest state workers union (WSEU) intervened and took the lead in defending the collective bargaining provisions.

The Dane County Circuit Court ruled in the newspapers’ favor and issued a decision invalidating the collective bargaining provisions that restricted disclosure of the union employees’ names. Milwaukee Journal Sentinel v. DOA and WSEU, Dane Cty Circuit Court, Case No. 05-CV-3569 (Oct. 13, 2006 and Feb. 21, 2007).

The union appealed to the Wisconsin Court of Appeals, which certified the appeal to the Wisconsin Supreme Court. The Department of Justice advised the state agencies to continue to comply with the collective bargaining provisions that restricted disclosure of the union employees’ names pending completion of the appeals.

The Wisconsin Supreme Court recently affirmed the Dane County Circuit Court decision, ruling that collective bargaining agreements cannot prevent disclosure to the public of the names of unionized government employees. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, ___ Wis. 2d ___, decided July 15, 2009.

The Wisconsin Supreme Court ruled that, although these collective bargaining agreements were ratified by the Wisconsin Legislature, it did not do so in a way that overcame the liberal public access requirements of the Wisconsin open records law. The Supreme Court also did not view the collective bargaining agreement provisions restricting access to the names of union members as relating to a “condition of employment.”

Under the open records law, Wis. Stat. §§ 19.31 to 19.39, records are presumed to be available to the public and subject to disclosure, unless a records custodian has a legitimate reason for non-disclosure.

The following quotations from Justice Roggensack’s majority opinion succinctly explain the Supreme Court’s decision:

¶3 ... ratification of the collective bargaining agreement was insufficient to amend the Public Records Law because Article 2/4/4 of the collective bargaining agreement was not “introduce[d] in a bill or companion bills” within the meaning of § 111.92(1)(a), as that meaning is driven by the requirements of Article IV, Section 17(2) of the Wisconsin Constitution. Accordingly, the ratification of the collective bargaining agreement did not create an exception to the Public Records Law. Additionally, we conclude that Wis. Stat. § 111.93(3) does not support WSEU’s assertion that Article 2/4/4 supersedes the disclosure provision of the Public Records Law, Wis. Stat. § 19.35(1)(a).

¶25 If a right is given to the public by statute, such as the right to seek disclosure of public records, the legislature generally may take that right away through legislative action in compliance with constitutional mandates. However, since Article 2/4/4 of the collective bargaining agreement was not enacted by bill, it remains a contractual provision. It is not ”law” under Wis. Stat. § 19.35(1)(a) that is an exception to the Public Records Law.

¶49 Read as a whole, Wis. Stat. § 111.93(3) instructs that “the provisions of [the collective bargaining] agreement shall supersede the provisions of civil service and other applicable statutes . . . related to wages, fringe benefits, hours, and conditions of employment whether or not the matters contained in those statutes, rules, and policies are set forth in the collective bargaining agreement.“ § 111.93(3). Section 111.93(3) plainly states that it is the statutory provision that is being superseded by the collective bargaining agreement that must relate to “conditions of employment.” The Public Records Law’s disclosure requirement, Wis. Stat. § 19.35(1)(a), however, relates to informing the public about the affairs of government through the provision of public records. See Wis. Stat. § 19.31. That is, § 19.35(1)(a) does not relate to conditions of employment as that term is used in § 111.93(3).

¶53 In light of these express statutory policies, we cannot accept WSEU’s argument that parties may, through the collective bargaining process, contract away the public’s rights under Wis. Stat. § 19.35(1)(a). To hold otherwise would be contrary to the public interest, and would have the potential to eviscerate the Public Records Law through private agreements. Accordingly, under Wis. Stat. § 111.93(3)’s plain language, and the express policies of the Public Records Law and statutory collective bargaining procedures, § 111.93(3) does not cause Article 2/4/4 of the collective bargaining agreement to supersede § 19.35(1)(a). Therefore, the Public Records Law’s presumption of access to these records applies.

Chief Justice Abrahamson dissented, arguing that courts should defer to the Legislature when it applies its own rules of procedure.

This is an important decision because it emphasizes that, in most cases the public is entitled to the names of government employees. However, the decision does not impair the right of public employees to prevent the disclosure of their home addresses and home phone numbers because the home addresses and home phone numbers of government employees are protected from disclosure by a statute enacted subsequent to these collective bargaining agreements. Wis. Stat. § 19.36(10)(a).

The Supreme Court also recognized that, in some limited cases, individual government employees may prevent disclosure of their names and other personal information under the balancing test. State agency records custodians may use the balancing test when there is no specific statute or court decision authorizing denial of access to a record. The balancing test requires custodians to balance the public interest in disclosure against the public interest in non-disclosure.

Although not specifically addressed in the Milwaukee Journal Sentinel v. DOA decision, there is statutory authority preventing disclosure of personally identifiable information (including names) if disclosure would endanger a person’s life or safety, or identify a confidential informant, Wis. Stat. §§ 19.35(1)(am)2 and 19.62(5).

Editor’s note: The State Bar of Wisconsin published an article on the Milwaukee Journal Sentinel v. DOA decision recently. Read the article.

Public Employee Personal e-mail messages sent on public computers

Schill v. Wisconsin Rapids School District

By Melanie Swank, GLD President-elect

Although no Wisconsin court has yet ruled on whether personal e-mail messages sent by public employees, on government computers, are ‘records’ as defined by the Wisconsin Public Records Law, such a case is pending before the Wisconsin Supreme Court by bypass upon certification from the Court of Appeals.

In Schill v. Wisconsin Rapids School District, 2008 AP 000967, the Wisconsin Rapids School District decided to release personal e-mail messages of several teachers that may have been responsive to a public records request. The requester admitted that he was making the request as a “fishing mission” to determine if the teachers were abusing the school district’s e-mail policy that allows occasional personal use of the school district’s e-mail system. Prior to disclosure, the school district notified the teachers of their intent to release the e-mails. According to the record, the e-mails in question are completely personal and have nothing to do with the business of the school district. The record shows that there were no allegations that the teachers had violated the school district’s e-mail use policy, and they were not the subjects of internal investigations. The teachers seek to block disclosure of the personal e-mails.

The issue for the court to decide is whether personal e-mails sent or received on government-owned computer systems, on government time, are ‘records’ as defined by the Wisconsin Public Records Law and therefore subject to release to the public.

Top

Balancing the Right to Know Versus the Right to Privacy

By Melanie Swank, GLD President-elect

Because of Wisconsin’s Public Records and Open Meetings Laws, Wisconsin citizens enjoy remarkable access to government. The implementation of these laws, however, is not always consistent; and the decided law is not always clear on what should be made public.

The Government Lawyers Division in collaboration with the State Bar’s CLE Department is very pleased to present a full-day CLE program devoted to Wisconsin Public Records and Open Meetings Laws. The live program is scheduled for Oct. 1, in Madison. The Webcast is scheduled for Oct. 19. Our seminar presenters include some of the very people who helped shape these laws.

Every attorney attending this seminar is sure to gain valuable insights into public records and open meetings laws. From preventing Wisconsin’s public records “sunshine laws” about burning a client’s reputation to the newest decisions and opinions, this seminar appeals to both government and private bar practitioners.

The program has been submitted to the Wisconsin Board of Bar Examiners for up to 7.5 CLE credits. It does not qualify for EPR credits. The program will also be submitted for Minnesota CLE credits. Tuition is $199 for members; $229 for nonmembers. View program highlights. Register.

The Government Lawyers Division scheduled this seminar date so that it coincides with the publication of the fourth edition of the State Bar of Wisconsin’s Public Records and Open Meetings Handbook, which is published in cooperation with the Government Lawyers Division. A special discount for the handbook will be available to all individuals who sign up for the seminar. Register now.

Top

GLD Member Attends 2009 Special Education Law National Training Conference

By: William Coleman, Administrative Law Judge, Division of Hearings and Appeals

In April, the beautiful campus of UCLA was the site of the 2009 Special Education Law National Training Conference. Attendance at the conference was limited to hearing officers and mediators of special education disputes. With partial funding from a generous grant from the Government Lawyer’s Division (GLD) of the State Bar of Wisconsin, I was very fortunate to be able to attend this superb, weeklong training conference.

My agency, the Division of Hearings and Appeals in the Department of Administration, provides Administrative Law Judges to conduct hearings for disputes that arise between parents and local school districts regarding the special education and services that are required to be delivered to children with special needs. These hearings are known as “due process hearings” and are conducted pursuant to a federal law known as IDEA (the Individuals with Disabilities Education Act) and its state analog, Wis. Stat. chapter 115, subchapter V. Other members of the GLD are often involved in these hearings as attorneys representing local school districts.

Hearing officers from eight states attended the national training conference. California had by far the greatest representation, due in large part to budget woes everywhere, but also because California has a state law requirement that hearing officers receive 80 hours of training on special education law to qualify to conduct a due process hearing, and 20 hours each year thereafter to maintain qualification. California is one of the more active jurisdictions in special education litigation – in FY2008, more than 2,300 due process hearing complaints were filed statewide. In contrast, filings of due process hearing complaints in Wisconsin have never reached the century mark in any given year.

It was not that long ago that children with disabilities were routinely excluded from public schools altogether. For example, in 1919 the Wisconsin Supreme Court upheld the decision of the Antigo school board to exclude a twelve-year-old boy with cerebral palsy from public school. The boy’s name was Merritt Beattie. He had been educated in public school through the fifth grade and he had always managed to keep “pace with other pupils.” The Antigo school board determined to exclude Merritt from public school for the sixth grade upon the conclusion that his presence was “harmful to the best interests of the school.” State ex rel. Beattie v. Board of Education, 169 Wis. 231, 172 N.W. 153 (1919). A remarkable excerpt from the reported case follows: 

“Merritt has been a crippled and defective child since his birth, being afflicted with a form of paralysis which affects his whole physical and nervous make-up. He has not the normal use and control of his voice, hands, feet, and body. By reason of said paralysis his vocal cords are afflicted. He is slow and hesitating in speech, and has a peculiarly high, rasping, and disturbing tone of voice, accompanied with uncontrollable facial contortions, making it difficult for him to make himself understood. He also has an uncontrollable flow of saliva, which drools from his mouth onto his clothing and books, causing him to present an unclean appearance … It is claimed, on the part of the school board, that his physical condition and ailment produces a depressing and nauseating effect upon the teachers and school children; that by reason of his physical condition he takes up an undue portion of the teacher’s time and attention, distracts the attention of other pupils, and interferes generally with the discipline and progress of the school.”

Since the Wisconsin Supreme Court’s decision in 1919, our state and our nation have come a long way in educating children with disabilities in the public schools. The most dramatic change to the legal landscape occurred in 1975, when Congress passed the predecessor statute to the IDEA. Before Congress passed this law, the public educational opportunities for children with disabilities were inconsistent and uncertain on a national level. According to the act’s legislative history, before enactment of the law fewer than half of the eight million children who required special education were receiving an appropriate education and at least one million of them were totally excluded from school.

Justice Rehnquist discussed this legislative history at length in the Supreme Court’s first take on the new law in Board of Education v. Rowley, 478 U.S. 176, 191-95 (1982). The Rowley decision is “must” reading for anyone working in special education law. It continues to provide the analytical framework for determining whether a school district is meeting its statutory obligation to provide a “free appropriate public education” (known as FAPE) to children with disabilities.

The keynote speaker at the UCLA Training Conference was Amy Rowley, who had been the child at the center of the Rowley case. Amy Rowley is deaf, and the Supreme Court ultimately rejected her parents’ effort to require her school to provide a full time sign language interpreter in the classroom. Nevertheless, the Rowley decision is regarded by many as a landmark because it confirmed the right of special needs students to a free appropriate public education as well as the law’s preference for “mainstreaming” special needs children in regular education classrooms.

Amy Rowley spoke through a sign language interpreter with clarity and eloquence, wonderfully punctuating her thoughts with facial expressions and graceful movements. After brief opening remarks, she responded to questions for nearly two hours, and riveted the audience with an account of her experiences with public education, first as a child with a disability, and currently as the parent of children with special needs and as a professional educator herself. (Rowley presently directs the American Sign Language program at a California university. Until 2007, she held a similar position for a number of years at UW-Milwaukee, where she was also a doctoral student.)

Amy Rowley’s keynote speech set the perfect tone for a week of first-rate presentations and workshops on special education laws and litigation. The substantive law can be dry and technical, but after her presentation it was nearly impossible to lose awareness of the fact that decisions in these matters have profound effects on the lives of the children, families, and educational communities involved. The agenda topics at the training conference were timely and relevant, and the speakers were excellent and included several marquee names in the field, two of whom provided a full day of training each.

There are many who would contend that despite progress made since the passage of the predecessor law to IDEA in 1975, special education in 2009 still has a long way to go. This may be true, but at the very least, the need for special education is now widely accepted. Very few children with disabilities are excluded from school today. Some children still do not receive an appropriate education, but there are now remedies available when that happens, and the procedural mechanism for obtaining such remedies (the due process hearing) is well established in every state. I suspect that every attendee at the conference left this superb training feeling better equipped to conduct the due process hearings fairly and effectively, and to decide these often difficult disputes according to law.

I had a terrific professional and personal experience attending the 2009 Special Education Law National Training Conference on the campus of UCLA. I am grateful to the GLD for helping to make it possible for me to be there.

Editor’s Note: The State Bar GLD provided financial grant assistance for Administrative Law Judge William Coleman to attend this conference.

Top

Seminar Addresses Rise of and Complexity of Prosecuting Abusive Head Trauma Cases

By: Sara Scullen, Assistant District Attorney, and Heather Placek, Assistant District Attorney

The Abusive Head Trauma: Evidenced Based Diagnosis and Prosecution Seminar was held in Madison last April. The conference, attended by an array of law enforcement officials, medical personnel, social workers, and prosecutors from around the State, was geared towards addressing the rise of and complexity of prosecuting abusive head trauma cases (sometimes referred to as “Shaken Baby Syndrome”).

The faculty included: Mary E. Case, MD, Professor of Pathology from St. Louis University School Medicine; Brian Holmgren, Assistant District Attorney General, Davidson County (Tennessee) District Attorney General’s Office; Robert Reece, MD, Clinical Professor of Pediatrics at Tufts University School of Medicine; and Dane County Assistant District Attorneys Mary Ellen Karst and Shelley Rusch.

Throughout the conference, these experts in the field explored the recent, yet relatively unfounded, controversial defenses in the prosecution of abusive head trauma cases by examining evidence-based research that dispelled the validity of many of the defenses commonly presented. To do so, Dr. Reese and Dr. Case presented the most current evidence-based research in abusive head trauma and discussed the supported and unsupported bases of alternate hypotheses of causation for injuries commonly associated with abusive head trauma. A significant portion of the conference was devoted to addressing the rash of recent, yet unfounded or unsupported, defenses to abusive head trauma cases.

The conference concluded with an extensive discussion of the Wisconsin courts’ rulings in State v. Edmunds and its impact on future prosecutions of abusive head trauma cases.

Audrey Edmunds was a child caretaker who was convicted of the homicide of seven-month-old Natalie due to shaken baby syndrome in 1996. At the original trial, medical witnesses for the prosecution testified that the death of Natalie was due to shaking and impact with immediate symptoms.

Defense expert argued that the infant had been injured prior to being placed in Edmund’s care. Edmunds was convicted. After years of appeals, in 2006, Edmunds filed a motion for a new trial citing “significant developments in the medical community around shaken baby syndrome.”

A handful of doctors hired by the defense presented testimony that there was a “significant debate among the medical community” about whether Natalie’s symptoms were due to shaking or shaking with impact. Hired defense experts were to testify, based upon data generally perceived in the medical community to be flawed, that impact would have been necessary to cause such an injury to Natalie and shaking alone would not have been sufficient. In addition, defense hires opined that Natalie’s symptoms resulted from re-bleeding of an old hematoma.

Given the proposed medical testimony, despite the rejection of these principles by the majority of the medical community, the court in Edmunds found that “the newly discovered evidence … shows that there has been a shift in mainstream medical opinion since the time of Edmund’s trial … it is the emergence of a legitimate and significant dispute within the medical community ….”

The collaborative discussion centered on the concepts that, in light of Edmunds, those involved in the prosecution of Abusive Head Trauma cases can anticipate that: (1) Courts will continue to have varying decisions about abusive head trauma; (2) Judges and juries need to hear sound expert testimony from qualified medical experts; and (3) Irresponsible medical testimony needs to be identified and excluded.

Editor’s Note: The State Bar GLD provided financial grant assistance for Assistant District Attorneys Amanda Kirklewski, Sara Scullen, Katryna Childs, and Heather Placek to attend this seminar.

Top

Thank You, CLE Book Authors

The State Bar of Wisconsin CLE Books Division thanks the following Government Lawyers Division members for their contributions of time and expertise over the last six months:

• Comm. Anton S. Jamieson (Annual Survey of Wisconsin Law 2009)
• Joyce L. Kiel (Advising Older Clients & Their Families v. II)
• S Bryan Kleinmaier (Annual Survey of Wisconsin Law 2009)
• Comm. Laura Florian Lau (Family Law Casenotes & Quotes)
• Autumn Lyn Lindquist (Wisconsin Attorney’s Desk Reference)
• John C. Mitby (Wisconsin Attorney’s Desk Reference)
• Richard K. Nordeng (Annual Survey of Wisconsin Law 2009)
• Hon. Michael N. Nowakowski (Civil Procedure Before Trial)
• Gary S. Rehfeldt (Wisconsin Attorney’s Desk Reference)
• Francis X. Sullivan (Civil Procedure Before Trial)
• John C. Talis (Wisconsin Attorney’s Desk Reference)
• Richard F. Verstegen (Annual Survey of Wisconsin Law 2009)
• Donald J. Wall (Attorney’s Guide to the Seventh Circuit Court of Appeals)
• Rose Ann Wasserman (Wisconsin Employment Law; Guide to Wisconsin Employment Discrimination Law)

Top