Before
We certify this appeal to the Wisconsin Supreme Court to determine: (1) whether courts have jurisdiction to review the process the legislature used to amend the open records law by ratifying a collective bargaining agreement; and (2) if so, whether the process used was effective to bring about a change in the law.
BACKGROUND
The Milwaukee Journal Sentinel and the Lakeland Times (the Newspapers) sought information regarding certain state employees under the open records law, Wis. Stat. § 19.35.[1] The state agencies provided the requested documents, but redacted the names of specific employees pursuant to a collective bargaining agreement which provides:
Notwithstanding the provisions of § 19.31-19.36 and 230.13 Wis. Stats. and any applicable federal laws, the Employer will not release any information relating to the names, addresses, classifications, social security numbers, home addresses or home telephone numbers of employees covered by this Agreement to labor unions, labor organizations, local unions or the press except for Council 24 and the local union treasurer for the purpose of local membership list unless required to do so by the Wisconsin Employment Relations Commission or a court of law.
This contractual provision was ratified by legislation. The text of the bill did not contain any of the changes to the open records act or state that the changes would be included in the contract. The bill, as signed into law and published in the Laws of Wisconsin, ratifies the contract of over three hundred pages without identifying any specific provision or any modification to an existing statute. The legislature did not pass any companion legislation to modify the open records law.
The Newspapers brought these consolidated actions to
compel compliance with the open records law.
The Wisconsin State Employees Union (the
The Newspapers contend any change to the open records law had to be specifically identified in the ratifying bill or a companion bill. When the legislature ratified the contract without passing bills specifically identifying changes in the law as required by Wis. Stat. § 111.92, it violated Wis. Const. art. IV, § 17. Section 111.92 provides that the joint committee on employment relations “shall introduce in a bill or companion bills… that portion of the tentative agreement which requires legislative action for implementation, such as … any proposed amendments, deletions or additions to existing law.” Article IV, § 17 provides, “No law shall be enacted except by bill. No law shall be in force until published.”
The Newspapers further contend the change to the open
records law contained in the contract is not a “clear statutory exception to
the open records law.” See Hathaway
v. Joint School Dist., 116
The
The trial court granted summary judgment to the Newspapers. Based on Board of Regents v. Wisconsin Personnel Commission,
103
DISCUSSION
The
threshold issue is whether courts have jurisdiction to review the legislature’s
compliance with Wis. Stat. § 111.92
when it authorized an additional exception to the open records law by ratifying
the collective bargaining agreement.
An
exception exists, however, when constitutionally mandated procedures are
implicated. LaFollette, 114
In Board
of Regents, 103
We submit that it is appropriate for the Wisconsin Supreme Court to decide whether courts have jurisdiction to review legislative compliance with Wis. Stat. § 111.92. The issue is fundamental to the relationship between the judicial branch and the other branches of government. The legislature has repeatedly passed bills that ratify contracts without identifying any changes to the statutes and without introducing separate legislation to accomplish that goal. By reading the published Laws of Wisconsin, one would not be aware that additional changes to the open records law had been passed. We submit that the Wisconsin Supreme Court should determine whether courts have jurisdiction to review the legislature’s compliance with § 111.92 because it implicates Wis. Const. art. IV, § 17 or whether, under Wis. Const. art. IV, § 8, courts are prohibited from reviewing compliance with § 111.92 under the separation of powers doctrine.
If the courts have jurisdiction to review the issue, the question remains whether the legislature succeeded in modifying the open records law when it ratified the contract. In Board of Regents, this court addressed the effect of noncompliance with Wis. Stat. § 111.92; concluding:
[I]f the legislature has failed to comply with its express approval procedure, one must conclude that the legislature did not intend a change for which it did not expressly provide.
….
Section 111.92(1), Stats. is a clear and unambiguous prohibitive statute restricting approval of tentatively-negotiated legislative changes in existing law to a particular manner, thereby excluding approval of the changes in any other manner. Fairness and certainty in the law is accomplished by requiring specific legislative changes if such changes are intended.
The manner of approval is prescribed in mandatory, peremptory and exclusive terms. Introduction of legislative bills is imperatively required. No discretion in that respect is imposed in the Joint Committee or the legislature if it is to comply with its self-imposed limitations upon the granted power and authority to engage in collective bargaining and enter into negotiated agreements in derogation of the state’s sovereignty….
The legislature has chosen a method for approval of a collective bargaining agreement that assures it will be informed of the intended changes of existing law, with the consequent opportunity to consider the merits of the changes in conjunction with its approval of the agreement. Such a procedure is endowed with the virtue of avoidance of complex judicial and administrative statutory construction designed to arrive at legislative intent, and minimizes the prospect of interpretive error. The procedure avoids unfavored implied repeals or amendments, assures that specific legislative acts will control general acts, and also assures statutory harmony.
The
The Newspapers
argue that, because the change in law was not included in the text of the bill,
any attempted change was ineffectual.
Relying on Board of Regents, the Newspapers argue the bill left the press
uncertain of its rights and the circuit court was left to struggle with
determining the legislature’s intent, precisely the result this court sought to
avoid in Board of Regents. The Newspapers
argue that, by the
The attorney general has opined that incorporating other unpublished
documents by reference is unconstitutional, stating “since the specific
provisions sought to be incorporated are not set out in detail in the proposed
legislation and are not published by the state under legislative authority, any
legislation resulting therefrom would be invalid as not in compliance with art.
IV, § 17.” See 50 Op. Att’y. Gen. 107, 113 (1961). See also
63 Op. Att’y Gen. 346, 349-50 (1974) 10 Op. Att’y Gen. 648, 656-57 (1921).
The Wisconsin Supreme Court should accept this case to resolve whether the legislature has effected changes in the law by ratifying the contract without introducing any specific companion legislation that identifies changes to the statutes. We seek clarification whether the provision in the open records law, “except as otherwise provided by law,” includes provisions found in unpublished, ratified contracts.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Wis. Stat. § 111.93(3) provides in relevant part:
If a collective bargaining agreement exists between the employer and a labor organization representing employees in a collective bargaining unit, the provisions of that agreement shall supersede the provisions of civil service and other applicable statutes, as well as rules and policies of the board of regents of the University of Wisconsin System, 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.