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Madison Teachers, Inc. v. Scott

Supreme Court of Wisconsin

February 6, 2018

Madison Teachers, Inc., Plaintiff-Respondent,
James R. Scott, Chairman and Records Custodian, Wisconsin Employment Relations Commission, Defendant-Appellant.

          Oral Argument: December 5, 2017

         APPEAL from an order of the Circuit Court for Dane County L.C. No. 2015CV3062. Reversed.

          For the defendant-appellant, there were briefs (in the court of appeals) filed by Steven C. Kilpatrick, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Steven C. Kilpatrick.

          For the plaintiff-respondent, there was a brief (in the court of appeals) filed by Susan M. Crawford and Pines Bach LLP, Madison. There was an oral argument by Susan M. Crawford.

          An amicus curiae brief was filed on behalf of the Wisconsin Freedom of Information Council, the Wisconsin Newspaper Association, and the Wisconsin Broadcasters Association by Dustin B. Brown, James A. Friedman, and Godfrey & Kahn, S.C., Madison.


         ¶1 This case comes before us on a bypass petition filed by the records custodian and chairman of the Wisconsin Employment Relations Commission ("WERC"), James R. Scott. Scott appeals a decision of the circuit court [1] that granted summary judgment to Madison Teachers, Inc. ("MTI") on its claim that the public records law was violated. [2] The circuit court also awarded MTI statutory damages, attorneys fees and costs.

         ¶2 MTI had made repeated requests, at various times during the 2015 certification elections, for names of Madison Metropolitan School District (the "School District") employees who had voted as of those dates. WERC denied MTI's requests based on Scott's determination that while this election was ongoing, the public interest that elections remain free from voter intimidation and coercion outweighed the public interest in favor of openness of public records.

         ¶3 One issue is presented in this appeal: whether the public interest that elections remain free from voter intimidation and coercion in this certification election is sufficient to outweigh the public interest in favor of openness of public records. Because we conclude that Scott lawfully performed the balancing test in concluding that the public interest in elections free from voter intimidation and coercion outweighs the public interest in favor of openness of public records, we reverse the circuit court. Accordingly, no attorneys fees are due MTI under the provisions of Wis.Stat. § 19.37 (2) .

         I. BACKGROUND

         ¶4 From November 4 through November 24, 2015, WERC conducted the annual certification election for collective bargaining representatives of the School District's employees references to Wisconsin statutes are to the 2015-16 version unless otherwise noted. pursuant to Wis.Stat. § 111.70(4)(d)3.b.[3] WERC contracted with the American Arbitration Association (the "Association") to provide technological services necessary to conduct the election.[4] With the Association's support, voting occurred via telephone and internet for 20 days, and the Association electronically maintained data for votes that were cast. According to the contract between WERC and the Association, the Association was required to email election results to WERC no later than one business day after the election concluded.

         ¶5 Notably, under Wis.Stat. § 111. 70(4) (d)3.b., in order to be certified as the elected representative of the bargaining unit, a labor organization must receive the votes of at least 51 percent of the total number of employees in the bargaining unit. Therefore, a non-vote in the election is for all intents and purposes a "no" vote. Pursuant to § 111.70(1) (e), certification elections are conducted by secret ballot.

         ¶6 One week prior to the start of the certification election, MTI wrote to Scott stating that it intended to submit requests pursuant to Wis.Stat. § 19.35(1) for records of the names of the School District's employees who had voted at specific points during the election. MTI wrote that it "wish[ed] to assure you that MTI will not engage in voter coercion or any other illegal election practices during the upcoming election. MTI is fully committed to exercising its First Amendment and statutory rights within the law."

         ¶7 On November 10, 2015, MTI submitted the first of its requests, seeking names of employees, by bargaining unit, who had voted as of that date. MTI requested that the records be delivered "as soon as possible, but not later than 5:00 p.m., November 16." On November 16, 2015, Scott advised MTI in writing that its request was denied for three reasons: first, because WERC utilized the Association, a third-party vendor to collect votes, the Commission did not possess the requested documents; second, because the annual certification election is conducted by secret ballot, disclosure of the names of employees who had voted would violate the secrecy of the ballot; and third, because the common law balancing test weighed in favor of "maintaining the secrecy of the ballot and of avoiding the potential for voter coercion while balloting is ongoing . . . ." Scott was aware of a complaint submitted to WERC by the Racine Unified School District, alleging that voters had been coerced and harassed into voting during the 2014 annual certification elections.[5]

         ¶8 MTI submitted a second request on November 17, 2015, for names of employees, by bargaining unit, who had voted as of that date. MTI requested that Scott respond "as soon as possible, but not later than 5:00 p.m., November 20." This request was also denied in writing on November 30, 2015.

         ¶9 The election ended at noon on November 24, 2015. At 3:26 p.m. on that day, MTI submitted a third request to WERC, requesting names of all employees who had voted in the certification election. WERC provided those names, by bargaining unit, at 12:37 p.m. the following day, November 25. Scott concluded that the public interest in maintaining openness of public records was satisfied by disclosing the requested lists immediately after the elections were over.

         ¶10 On November 30, 2015, MTI filed a complaint pursuant to Wis.Stat. § 19.37(1)(a), [6] seeking an order for mandamus, punitive damages, attorneys fees and costs, based on Scott's refusal to release voting records in response to MTI's November 10 and November 17 requests. On December 1, 2015, MTI filed an ex parte motion, citing Wis.Stat. § 801.02(5), for an order shortening the time for filing an answer or other responsive pleadings from 45 days to 20 days. The circuit court granted the ex parte motion on December 3.[7] On December 4, 2015, MTI served the complaint, its ex parte motion and the resulting order on Scott.

         ¶11 On December 11, 2015, Scott filed a motion and supporting brief to reconsider and vacate the court's December 3 order. A hearing was conducted on December 15, at which the court granted Scott 45 days to answer. Scott timely answered.

         ¶12 On December 22, 2015, WERC's legal counsel, Peter Davis, emailed the Association, stating: "Whenever convenient can you tell me if it [is] still possible to identify who had voted as of noon Nov 10 and noon Nov 17 in the various Madison Schools/Madison Teachers units. If it is possible, can you send me that info[] unit by unit[?]" The Association provided those records to WERC, which WERC provided to MTI during discovery.

         ¶13 MTI and Scott filed cross-motions for summary judgment. Scott argued, among other things, that the public interest in non-disclosure of the names of those who had voted when the election was ongoing outweighed the public interest in disclosure at that time and therefore, MTI did not have a legal right to the records it sought. Meanwhile, MTI argued that Scott failed to overcome the strong presumption in favor of openness of public records. Upon completion of briefing, the court granted MTI's motion and denied Scott's.

         ¶14 At the hearing on summary judgment, MTI also sought punitive damages, costs, and attorneys fees. A second hearing was held on these issues, and the court modified its previous order denying punitive damages and granting MTI $100.00 statutory damages, $41, 462.50 attorney fees and $301.35 costs.

         ¶15 Scott appealed and, following initial briefing, Scott petitioned for bypass, which we granted. We now reverse the circuit court.


         A. Standard of Review

         ¶16 We review a record custodian's decision to deny a public records request independently. It is the duty of the records custodian to specify the reasons for not disclosing a public record, and we decide whether those reasons outweigh the public interest in disclosure as a matter of law. See Democratic Party of Wis, v. DOJ, 2016 WI 100, ¶9, 372 Wis.2d 460, 888 N.W.2d 584');">888 N.W.2d 584. When a records custodian employs a balancing test, it is the custodian's burden to show that the public interest favoring denial of the requested record outweighs the public interest favoring disclosure. Id. (citing John K. Maclver Inst, for Pub. Policy, Inc. v. Erpenbach, 2014 WI.App. 49, ¶14, 354 Wis.2d 61, 848 N.W.2d 862).

         B. Public Records Law

         ¶17 Wisconsin's public records law is set forth in Wis.Stat. § 19.31, et seq. Wisconsin's public records law requires that, absent a statutory, common law or overriding public interest in denying access, the public has the right "to inspect certain documents within the possession of a state entity." Voces De La Frontera v. Clarke, 2017 WI 16, ¶17, 373 Wis.2d 348, 891 N.W.2d 803');">891 N.W.2d 803. The public records law "serves one of the basic tenets of our democratic system by providing an opportunity for public oversight of the workings of government." Nichols v. Bennett, 199 Wis.2d 268, 273, 544 N.W.2d 428 (1996) (citing Newspapers, Inc. v. Breier, 89 Wis.2d 417, 433-34, 279 N.W.2d 179 (1979)). When evaluating a public records request, we keep in mind that Wisconsin has a "presumption of open access to public records." Osborn v. Bd. of Regents of Univ. of Wis. Sys., 2002 WI 83, ¶13, 254 Wis.2d 266, 647 N.W.2d 158 (citing Hathaway v. Green Bay Sch. Dist., 116 Wis.2d 388, 397, 342 N.W.2d 682 (1984)); see also Wis.Stat. § 19.31 (providing that "it is . . . the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them."); cf. Leann Holcomb & James Isaac, Comment, Wisconsin's Public Records Law: Preserving the Presumption of Complete Public Access in the Age of Electronic Records, 2008 Wis. L. Rev. 3, 515.

         ¶18 The public's right to access public records is very strong, but it is not unrestricted. Voces De La Frontera, 373 Wis.2d 348, ¶18. "The strong presumption of public access may give way to statutory or specified common law exceptions, or if there is an overriding public interest in keeping the public record confidential." Kroeplin v. DNR, 2006 WI.App. 227, ¶13, 297 Wis.2d 254, 725 N.W.2d 286 (citation omitted); see also Hathaway, 116 Wis.2d at 397 ("[T]he general presumption of our law is that public records shall be open to the public unless there is a clear statutory exception, unless there exists a limitation under the common law, or unless there is an overriding public interest in keeping the public record confidential.") .[8] In other words, "[b]ecause the denial of public access is generally contrary to the public interest, " access may be denied only in limited circumstances. Kroeplin, 297 Wis.2d 254, ¶12 (citing Kailin v. Rainwater, 226 Wis.2d 134, 142, 593 N.W.2d 865 (Ct. App. 1999)).

         ¶19 In determining whether there is an overriding public interest in keeping a requested record confidential when there is no statutory exception to provision of the record, the record custodian balances competing public interests that bear on the release of the requested record. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, ¶¶55-56, 319 Wis.2d 439, 768 N.W.2d 700');">768 N.W.2d 700. That is, the custodian balances the public interest in nondisclosure against the public interest in disclosure. Id., ¶55. The balance is accomplished through a case-by-case analysis. Because the interests asserted in denying disclosure are discrete to each case, "blanket exceptions from release" generally are not forthcoming. Id., ¶56. Stated otherwise, "the custodian must determine whether the surrounding factual circumstances create an 'exceptional case' not governed by the strong presumption of openness." Hempel v. City of Baraboo, 2005 WI 120, ¶63, 284 Wis.2d 162, 699 N.W.2d 551.

         ¶20 The public interest balancing test considers "whether disclosure would cause public harm to the degree that the presumption of openness [of public records] is overcome." Democratic Party of Wis., 372 Wis.2d 460, ¶11; see also Osborn, 254 Wis.2d 266, ¶15.

         C. Secret Ballot Elections

         1. General principles

         ¶21 As a general matter, voting may occur by voice acclamation, the raising of hands in a meeting or by secret ballot, depending on the statutory directive or lack thereof. In regard to the matter before us, Wis.Stat. § 111.70(1) (e) requires that certification elections be conducted by secret ballot.

         ¶22 All 50 states have employed the secret ballot method of voting to limit voter intimidation during elections. Burson v. Freeman, 504 U.S. 191, 206 (1992) . As explained in Burson, the history of election regulation in the United States shows that voter intimidation and coercion are long-standing evils that election regulations sought to prevent. Id.

         ¶23 The right to vote in certification elections is a statutory right; yet, Burson is instructive in the matter before us because of its exposition of the policies that underlie the use of secret ballots. In Burson, a political party worker sought to enjoin enforcement of Tennessee statutes that prohibited solicitation of votes and display of campaign materials within 100 feet of entrances to polling places on election day. Id. at 193-94. The party worker claimed that the statutory regulation violated her right to communicate with voters, in contravention of her First Amendment rights. Id. at 194-95. Tennessee contended that its statutes were narrowly drawn to serve compelling state interests of preventing voter harassment and intimidation. Id. Further, Tennessee contended that the campaign-free zone "protects the right to vote in an election conducted with integrity and reliability." Id. at 199.

         ¶24 In concluding that the Tennessee statute was constitutional, even though it was not a content-neutral regulation of speech, the Supreme Court reviewed the history of the secret ballot method of voting in the United States and how it has had an immediate and positive effect in limiting intimidation and coercion of voters. Id. at 202-06. The Court concluded by explaining that the contest over Tennessee's election regulation involved "the exercise of free speech rights [in] conflict [] with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud." Id. at 211. On balance, the Court said that removing the opportunity for intimidation of voters must prevail. Id.

         2. Certification elections

         ¶25 2011 Wisconsin Act 10 made various changes to collective bargaining for most public employees. Act 10 requires annual certification elections, which are administered by WERC. Wis.Stat. § 111.70(1) (c) and (e) . Prior to Act 10, collective bargaining units for municipal employees also were established through WERC's recognition of employee votes. See Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶19, 358 Wis.2d 1, 851 N.W.2d 337. Before Act 10, members of a collective bargaining unit were allowed to select a labor organization as their representative when a majority of the votes cast were for a particular labor organization, even when those votes were not equivalent to a majority of the employees in the bargaining unit. ...

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