July 16, 2009 – The Wisconsin Supreme Court agreed two newspapers were entitled to access state personnel records after it concluded that the Legislature failed to properly amend the open records laws to prevent such disclosure.

But before the court could even reach these determinations in Milw. Journal Sentinel v. Wisc. Dept. of Admin., 2009 WI 79, it had to find that it was empowered to review the Legislature’s work. A majority of the court concluded that it was, given its mandate to review statutes for compliance with the constitution.

In dissent, Chief Justice Shirley Abrahamson said that the court’s review was unduly interfering in the affairs of an equal branch of government.

Records request

Reporters from the Milwaukee Journal Sentinel and the Lakeland Times separately sought names of state employees in connection with their respective news articles. The responding state agencies refused to disclose the names of employees represented by the Wisconsin State Employees Union (WSEU).

The records custodians cited Article 2/4/4 of the state’s collective bargaining agreement with WSEU, which stipulated the state would not release the names, addresses, phone numbers, or other personal information of its employees to “the press.”

Once the cases were consolidated, the circuit court ruled in favor of the newspapers. The court of appeals certified the case for review by the supreme court where the justices dissected the circuit court’s reasoning, affirming its conclusions.

Jurisdiction to review

The crux of the dispute is whether the Legislature successfully amended the Public Records Law to accommodate its agreement with WSEU. Answering that question begins with a reading of Wis. Stat. § 111.92 (1) (a), which directs the procedure for legislative approval of a collective bargaining agreement.

Under § 111.92 (1) (a), those portions of a tentative agreement that require legislative action are supposed to be introduced “in a bill or companion bills.” The statute specifies that “any proposed amendments, deletions or additions to existing law” need legislative action.

In this case, there was no bill identifying Article 2/4/4 as an amendment to the Public Records Law. Rather, lawmakers voted for a bill that only made reference to the agreement’s contents as a document on file with the office of state employment relations.

WSEU argued that § 111.92 (1) (a) is merely a rule that the Legislature imposes on itself under Article IV, Section 8 of the Wisconsin Constitution for proposing and passing legislation. The Legislature’s failure to follow its own rules is equivalent to an ad hoc repeal, which the lawmakers are free to do at any time. Accordingly, the court cannot review this procedure.

But the court sidestepped that issue, citing the principle of Marbury v. Madison, 5 U.S. (1 Crunch (1803), that the judiciary must review a statute’s terms to ensure its compliance with the constitution.

The court observed that § 111.92 (1) (a) and Article IV, Section 17 (2) require the Legislature to take additional actions to amend existing law or to create new law, and so it must interpret those provisions to evaluate the Legislature’s compliance.

In her dissent, Abrahamson pointed out that only the statute – not the state constitution – requires introduction of a bill containing an amendment to existing law. Further, she said that § 111.92 (1) (a) does not specify any particular manner for setting forth the agreement’s content in need of legislative approval. Accordingly, the precise language used for ratifying the collective bargaining agreement is best left to the Legislature.

Abrahamson confessed that, as a matter of giving the public fair notice of changes in the law, she would prefer “if the legislature spelled out exactly what statutes it intends to modify when ratifying a collective bargaining agreement.”

But, Abrahamson noted, lawmakers have used “the same kind of language over several years to ratify collective bargaining agreements,” suggesting they are satisfied it conforms to § 111.92 (1) (a).  The court should stay out of this on the principle of respecting an equal branch of government, she said.

Justice Ann Walsh Bradley, in her own concurrence, sympathized with Abrahamson’s arguments, but concluded that “the weighty public policies of notice and transparency in government tip the scale” against finding § 111.92 (1) (a) simple a rule of legislative proceeding. Accordingly, she agreed with the majority that the court should intervene.

Not a ‘law’

The court majority began its constitutional analysis by asking if Article 2/4/2 was actually “enacted by a bill” and subsequently published so as to be a “law,” as defined by Article IV, Section 17 (2) of the state constitution.

Lawmakers voted on Senate Bill 565, referring to the collective bargaining agreement in its entirety and published it as 2003 Wisconsin Act 319. Justices considered the argument that Article 2/4/4 is a “law” because 2003 Wisconsin Act 319 referenced the collective bargaining agreement thatcontains Article 2/4/4.

In State v. Wakeen, 263 Wis. 401 (1953), the court upheld a law that defined “drug” by reference to federal government publications. But the justices said this case is distinguishable because the statute in question “expressly stated that it was adopting the definitions of ‘drug’ contained in the referenced document.”

“Here, nothing in 2003 Wisconsin Act 319 states that it is expressly adopting an exception to the Public Records Law by ratifying Article 2/4/4, much less adopting any amendment to any statute,” the court said.

Because the statute in Wakeen made a specific reference to the document incorporated for a stated purpose, the court said this arguably satisfies the requirement of “enacted by bill,” the court added.

The justices similarly found that publication of 2003 Wisconsin Act 319 could not translate into publication of Article 2/4/2 because citizens remained unaware of any change to the Public Records Law. The purpose of publication is to give notice of new law, they remarked.

Bargaining agreement does not supersede

The union turned to Wis. Stat. § 111.93 (3), which provides that a collective bargaining agreement will supersede conflicting statutes “related to wages, fringe benefits, hours, and conditions of employment.”

WSEU contended that the agreement not to disclose employees’ names is a condition of employment because protecting personal information relates to job safety. For example, employees at the Department of Corrections could be harassed by offenders, the union said.

But the court said that the statutes in conflict must actually pertain to working conditions such as wages, hours, and promotion. Because the Public Records Law concerns public access to government records, there is no conflict with the bargaining agreement, the court said.

Balancing test

The court lastly considered whether the interest in not disclosing the names outweighed the Public Records Law’s presumption in favor of disclosure and the newspapers’ interests.

Noting that the names WSEU seeks to withhold are already publicly available in a directory, the court said the argument that disclosure will detrimentally affect the employees is weakened. Further, the court dismissed fears of potential embarrassment as no basis to prevent disclosure.

The court remarked that public employees, as a group, generally have to expect this level of scrutiny.

“Nearly all public officials, due to their profiles as agents of the State, have the potential to incur the wrath of disgruntled members of the public, and may be expected to face heightened public scrutiny,” the court wrote. “[T]hat is simply the nature of public employment.”