Wisconsin Supreme Court

Wisconsin's seven Supreme Court justices hear arguments in this chamber in the Capitol. STATE OF WISCONSIN PHOTO

Gov. Scott Walker’s allies on the Wisconsin Supreme Court continue to implement the governor’s anti-labor agenda. On Feb. 8, Chief Justice Patience Roggensack and her cronies — Justices Rebecca Bradley, Michael Gableman, Daniel Kelly and Annette Ziegler — ruled that officials may violate the basic premise of the state’s open records law in order to undermine unions.

Walker’s assault on public sector unions and their members, Act 10, required each union to go through an annual “recertification” election in order to maintain its status as a collective bargaining representative for workers. To achieve recertification, the union must win “yes” votes from at least 51 percent of all employees in a unit, who cast ballots over 20 days in an election administered by the state.

What that means is that a union could win an overwhelming majority of votes cast and still be decertified because it failed to hit the 51 percent mark. To give folks an example of how high the bar is, consider this: When Walker was re-elected governor in 2014, he won 52 percent of the vote. But the overall turnout was just 54.5 percent. That means that, by getting 1,259,706 votes out of 4,416,501 — the figure the Government Accountability Board listed that year as Wisconsin’s voting-age population — Walker got around 28 percent support from the overall electorate.

Were Walker running in an election of the sort he and his allies require unions to win, he would have been decertified.

Unions participating in recertification elections have to work overtime to ensure not only that they attain a majority of votes that are cast but that turnout is exceptionally high.

So when Madison Teachers Inc. was going through a recertification election in 2015, the union requested regular updates on who had voted from the Wisconsin Employment Relations Commission. The union wanted to use the information to encourage members to vote, and to monitor reports of glitches with the voting process.

But WERC refused to release the public records of who had voted, claiming that doing so might lead to “coercion” — in the form, presumably, of get-out-the-vote efforts.

The denial of the records rejected the state open records law, which requires that public information be released "as soon as practicable and without delay." Yet the Walker majority on the Supreme Court ruled — surprise — that secrecy favored by Walker and his anti-union allies prevailed over the standards set by the open records law.

In a stinging dissent, Justice Ann Walsh Bradley pointed out that discussion of “coercion” was hypothetical and wrote: “The majority undermines the presumption of open access to public records by imputing an unsupported and nefarious purpose to the records requests based on nonexistent facts.”

Justice Bradley noted: “For the third time in three years this court continues to undermine our public records law. Yet again, this court overturns a lower court decision favoring transparency of records to which the public is rightfully entitled.”

Former Chief Justice Shirley Abrahamson joined Bradley in dissenting from the assault on the open records law.

This ruling is one that voters should keep in mind as they head to the polls next Tuesday to vote in the primary for the court seat Gableman is quitting. As the Milwaukee Journal Sentinel reminds us: “One of the candidates, (Michael) Screnock, worked at Michael Best & Friedrich, where he helped defend Act 10, the 2011 law Walker signed that weakened unions who represent teachers and other public workers.”

Two other contenders have backgrounds that suggest they are independent from Walker: Milwaukee County Circuit Judge Rebecca Dallet and Middleton lawyer Tim Burns, who has chaired the American Bar Association's Committee on Fair and Impartial Courts and served on the national board of the American Constitution Society.

Burns says: “I believe our courts have become rigged in a partisan way and that it is impossible for us to have a healthy democracy or a truly healthy economy without changing the courts.” That’s a serious assertion, but certainly not an unreasonable one, as the latest attack on transparency by Walker’s high court allies confirms.

John Nichols is associate editor of The Capital Times. jnichols@madison.com and @NicholsUprising. Nichols is the co-author, along with Dave Zweifel, of the new book "The Capital Times: A Proudly Radical Newspaper's Century Long Fight for Justice and Peace," published by the Wisconsin Historical Society Press. It's available on the Historical Society website, and at Amazon and Barnes and Noble.

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