State high court takes up union open records case

MADISON – The state Supreme Court heard arguments Tuesday in an open records case that could determine how quickly state officials must produce documents.

The case pits a Madison teachers union against an employment commission controlled by an appointee of GOP Gov. Scott Walker, who has long clashed with unions.

An attorney for the union faced tough questions, with some justices asking how fast the commission needed to release the names of teachers who voted in a union election — as well as whether it needed to release them at all.

Union attorney Susan Crawford said afterward that observers should not draw too many conclusions from the questions that were asked. But she also said a decision against her client could have broad implications for others who seek public records.

She said she was troubled that the Wisconsin Employment Relations Commission had withheld voting records because of concerns about how the information could theoretically be used.

“It’s the you-can’t-handle-the-truth rationale,” Crawford said.

Under the 2011 labor law known as Act 10, most public-sector unions must hold annual elections to determine whether they can continue to bargain for raises.

The unions must win support from 51% of all eligible members, not just those who cast votes. In effect, if someone doesn’t cast a ballot, it counts as a “no” vote.

As a result, union officials want to track voting patterns closely to make sure all of their supporters cast ballots during the 20-day voting period. The elections are overseen by the employment relations commission.

In November 2015, Madison Teachers Inc. sought documents under the open records law to find out who had voted at the midpoint of the voting period. The commission denied the request at that stage, but released records showing who voted after the election, which the union won overwhelmingly.

The commission maintained it could not release the records while the election was pending because doing so could result in voter coercion.

The union sued over the timing of the release of the records. Dane County Circuit Judge Peter Anderson ruled in the union’s favor last year, saying the commission had to promptly release voting information because the records law requires documents to be made public “as soon as practicable and without delay.”

The commission appealed and the state Supreme Court agreed to hear the case without having an appeals court first issue a decision.

Conservatives hold a 5-2 majority on the Supreme Court. Three of them — Justices Rebecca Bradley, Michael Gableman and Daniel Kelly — sharply questioned Crawford about the possibility that the union could engage in voter intimidation if it knew who had voted while the election was still ongoing.

Kelly questioned whether the information about who voted should be released at all, noting union elections are held annually.

“The union will have the road map of who voted no by not voting in the last election,” he said.

Assistant Attorney General Steven Kilpatrick said the commission released information about who voted after union elections so the public would have confidence they were run properly. Kelly said he still had questions.

“I’m trying to figure out why the interest in transparency is greater in the next election than it is in the present election,” Kelly said.

The other conservatives on the court asked fewer questions than Bradley, Gableman and Kelly. Chief Justice Patience Roggensack asked a few questions and Justice Annette Ziegler did not speak at all.

The court’s two liberals, Justice Shirley Abrahamson and Ann Walsh Bradley, had tough questions about why the commission withheld the records. (Ann Bradley and Rebecca Bradley are not related.)

When the case started, the commission consisted of three Walker appointees. As part of the state budget this year, Walker and GOP lawmakers downsized the commission to one commissioner and his staff.