Feb. 8, 2018 – The Wisconsin Supreme Court recently ruled that the Wisconsin Employment Relations Commission (WERC) did not violate the state’s public records law when it withheld requested voter names during a union certification election period.

Madison Teachers Inc. (MTI), the collective bargaining representative for employees of the Madison Metropolitan School District (MMSD), faced a certification election in 2015.

Under Wisconsin law, WERC must annually conduct a secret ballot election to certify the exclusive collective bargaining representative. The representative must receive “yes” votes from at least 51 percent of all employees in the collective bargaining unit to be certified. Employees cast ballots electronically through the internet or by phone.

Before Act 10, a law enacted in 2011, union representatives could obtain certification by a majority of the “votes cast,” without a majority of votes by all employees in the unit, and remained the representative unless defeated in a requested decertification election.

In 2015, during the 20-day election period, MTI periodically requested from WERC the names of MMSD employees who already voted, which would allow MTI to identify those who didn’t. Employees who did not vote provided default “no” votes against certification.

MTI indicated, in its requests for public records, that a list of voter names would not be used to engage in voter coercion or illegal election practices and MTI would exercise its First Amendment and statutory rights within the bounds of the law.

Request Denied

James Scott, WERC’s records custodian, declined MTI’s three requests for voter information during the election. He said disclosure would violate the secrecy of the ballot, and secrecy is necessary to curb potential voter coercion during the election.

After the election concluded, WERC provided MTI with the information requested. Not satisfied, MTI sued WERC, alleging that WERC violated Wisconsin’s public records law, Wis. Stat. section 19.35, which gives requestors a right to inspect any public record.

MTI argued that public record requests provided the only opportunity to oversee WERC’s election administration, because elections are now conducted electronically or by phone. Previously, union representatives could observe in-person voting.

The union, through counsel, noted various complaints of glitches that possibly blocked voters from voting electronically, and the records requests were MTI’s only opportunity to detect potential problems while the election was ongoing.

The Dane County Circuit Court ruled in favor of MTI, concluding that WERC violated the public records law when it failed to timely provide the information that MTI requested.

The court denied MTI’s request for punitive damages but awarded statutory damages of $100 and attorney fees of more than $40,000. The Wisconsin Supreme Court granted WERC’s petition for bypass, which allowed the case to bypass the court of appeals.

Majority Reverses

In Madison Teachers Inc., v. Scott, 2018 WI 11 (Feb. 6, 2017), the supreme court reversed (5-2), concluding that WERC did not violate Wisconsin public records law in failing to provide MTI with voter names within the certification election period.

The majority noted that a custodian of public records, here James Scott, must specify a decision to deny a public records request, and courts (upon challenge) must decide whether those reasons are sufficient to outweigh the public interest in disclosure.

In this case, the majority concluded that Scott’s reasons for denial were sufficient to overcome a presumption of access to public records, based on concerns of coercion.

“[T]he public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open public records under the circumstances presented in the case before us,” wrote Chief Justice Patience Roggensack for the majority.

“Scott’s denial of MTI’s requests for voter names during the course of the certification election evidences that lawful balance of public interests presented here.”

The majority explained that a request for names of those who voted would have allowed MTI to “target MTI’s most forceful efforts” at those who had not voted yet.

“Given MTI’s repeated requests for the names of those who voted before the election concluded, it is entirely possible that those employees who had not yet voted would be subject to individualized pressure by MTI. …” Chief Justice Roggensack noted.

The majority noted that Scott had previously received a complaint of coercion during an election to certify the teacher union representing Racine School District employees.

“[T]he public interest in certification elections that are free from intimidation and coercion is evidenced by the requirement that those elections be conducted by secret ballot and free from prohibited practices,” the chief justice wrote.

Dissent

Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson, concluding that Scott violated the state’s public records law in denying MTI’s requests.

The dissent said the majority undermined a presumption of open access to public records in Wisconsin by basing its conclusion on facts that did not exist.

“Neither the majority nor the records custodian points to any evidence of voter intimidation or coercion by MTI in this recertification election,” wrote A.W. Bradley, noting that “unfounded speculation that the records might be used for improper purposes” cannot be used to overcome a presumption of open access. 

“Rather, this concocted concern is based solely on one uninvestigated and unsubstantiated complaint from Racine County, involving a different union, in a different election, in a different year, that did not involve a public records request.”

The dissenters said the legislature empowered WERC to investigate unfair labor practices, such as voter coercion.  “The legislature did not, however, carve out an exception to the public records law permitting WERC to withhold records that historically have been accessible to the public,” Justice A.W. Bradley wrote in her dissent.

Justice A.W. Bradley also rejected the argument that disclosing voter names during the election would violate the secrecy of the ballot, noting the act of voting is not secret – only the contents of the ballot. She noted that WERC released the names after the election, which was contradictory to its argument that such information is secret.