Milwaukee Journal Sentinel v. Wisconsin Department of Administration

SHIRLEY S. ABRAHAMSON, C.J.

¶ 79. (dissenting). The newspapers (the Milwaukee Journal Sentinel and the Lakeland Times) argue that this court should interpret and apply Wis. Stat. § 111.92(l)(a) to determine whether legislation ratifying a collective bargaining agreement complies with § 111.92(l)(a). The newspapers' argument requires this court to determine whether Wis. Stat. § 111.92(l)(a) sets forth a rule of legislative proceeding, that is, a rule establishing procedural requirements falling within Article IY Section 8 of the Wisconsin Constitution. Article IY § 8 provides that "[e]ach house may determine the rules of its own proceedings."

¶ 80. If Wis. Stat. § 111.92(l)(a) is a rule of proceeding under the Wisconsin Constitution, the doctrine of separation of powers and the principle of comity apply, and the courts will not enforce § 111.92(l)(a): "If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid."1

*486¶ 81. If Wis. Stat. § 111.92(l)(a) is not a rule of proceeding under the Wisconsin Constitution, the court will interpret and apply § 111.92(l)(a) to the fact situation presented.

¶ 82. The majority opinion concludes that Wis. Stat. § 111.92(l)(a) was not satisfied in the present case and that the records must be released. See majority op., ¶¶ 37-41. I reach a different conclusion. I conclude that § 111.92(l)(a) sets forth a rule of proceeding under the Wisconsin Constitution and courts should not intervene to enforce § 111.92(l)(a).

¶ 83. Wisconsin Stat. § 111.92(l)(a) provides in relevant part that if the Joint Committee on Employment Relations approves a tentative agreement between the State and a labor organization, the Committee "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." This requirement about the content of a bill relating to a collective bargaining agreement is not mandated by the constitution.

¶ 84. The Joint Committee on Employment Relations did introduce a bill relating to the collective *487bargaining agreement at issue in the present case. The bill became law as 2003 Act 319. The Act ratified the tentative collective bargaining agreement, providing as follows in pertinent part:

The legislature ratifies the tentative agreement negotiated for the 2003-05 biennium between the state of Wisconsin, the office of state employment relations, and the Wisconsin State Employees Union.... The director of the office of state employment relations shall file an official copy of the agreement, certified by the cochairpersons of the joint committee on employment relations, with the secretary of state.

¶ 85. The newspapers contend that the Act is invalid as a violation of Wis. Stat. § 111.92(l)(a) to the extent the Act attempts to ratify the portion of the collective bargaining agreement that amends the public records law. The Act, they argue, does not explicitly set forth that portion of the agreement that requires legislative action.

¶ 86. As is obvious from the text of the Act, nothing in the Act explicitly sets forth any portion of the tentative collective bargaining agreement at all, let alone any portion that requires legislative action. The Act does not refer to any statute; it does not refer to the public records statute; and it does not explicitly exempt information about state employee records from press access. The Act merely refers to and ratifies the collective bargaining agreement as a whole and requires that the agreement be filed with the Secretary of State.

¶ 87. I answer the issue presented, guided by these three legal principles:

(1) Courts have the authority to review legislative acts to determine whether they conflict with the United States or Wisconsin constitution.

*488(2) Courts have the authority to interpret statutes and apply them to the facts presented.

(3) "[T]he legislature's adherence to rules or statutes prescribing legislative procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution."2 If the legislature fails to follow self-imposed procedural rules, including a procedural rule in the form of a statute, the legislature is viewed as accomplishing "an implied ad hoc repeal of such rules."3

¶ 88. Because the first and third legal principles above relate to the Wisconsin constitution, I set forth the three relevant Wisconsin constitutional provisions.

*489• No law shall be enacted except by bill. Wis. Const, art. TV, § 17(2).
• No law shall be in force until published. Wis. Const, art. TV, § 17(2).
• Each house may determine the rules of its own proceedings. Wis. Const, art. iy § 8.4

¶ 89. 2003 Act 319 satisfies the first two constitutional provisions; it does not run afoul of Article iy Section 17(2). It was enacted by a bill, namely 2003 Senate Bill 565. It was published on May 28, 2004.

¶ 90. Nothing in the Wisconsin Constitution requires that a bill ratifying a collective bargaining agreement contain language other than the language required to be in all acts under Article iy Section 17(1).5 Nor does anything in the Wisconsin Constitution forbid the legislature from enacting a law referring to an extrinsic document.6 Insofar as § 111.92(l)(a) sets forth requirements about the content of a bill ratifying a collective *490bargaining agreement, it imposes a statutory limitation upon a legislative act ratifying a collective bargaining agreement that is not set forth in the Wisconsin Constitution.

¶ 91. I now turn to the third Wisconsin constitutional provision relating to the right of each house to determine the rules of its own proceedings. A court decides whether Wis. Stat. § 111.92(l)(a) is a "rule of proceeding" under Article iy Section 8 of the Wisconsin Constitution.7 The court has used the phrase "rules of its own proceedings" under Article iy Section 8 interchangeably with the phrases "rules governing how [the legislature] operates" and "the legislature's procedural rules."8

*491¶ 92. Neither the parties nor the amici curiae furnish a good definition or description of what is meant hy the constitutional phrase "a rule of its own proceedings." This omission is not surprising. Courts and litigants have difficulty in some instances in distinguishing between a rule of proceeding and a rule governing a substantive matter. There is no magic line always easily discernible between procedural rules and rules governing non-procedural matters.

¶ 93. The newspapers argue that the language at issue in Wis. Stat. § 111.92(l)(a) relates to content, not procedure. I agree that the statutory language requiring the Joint Committee on Employment Relations to "introduce in a bill. . . that portion of the tentative agreement which requires legislative action for implementation" governs the content of a bill: the statute clearly provides that a bill must contain that portion of the tentative agreement that requires legislative action, such as an amendment to existing law.

¶ 94. Section 111.92(l)(a) does not, however, specify in what way a bill must set forth that portion of the tentative agreement that requires legislative action. Section 111.92(l)(a) is silent on the method of including that portion of the tentative agreement in a bill.

¶ 95. The court of appeals in Board of Regents v. Wisconsin Personnel Commission, 103 Wis. 2d 545, 309 N.W.2d 366 (Ct. App. 1981), repeatedly refers to Wis. Stat. § 111.92(l)(a)9 as setting forth a rule of legislative procedure, a method for legislative approval of a collec*492tive bargaining agreement.10 Nevertheless, the Board of Regents court of appeals treated Wis. Stat. § 111.92's procedural requirements as binding on the legislature. The court of appeals stated that if the legislature intends to change a law by ratifying a collective bargaining agreement, it must "comply with its own limiting approval procedure to effect this change."11

¶ 96. The Board of Regents decision is, however, not helpful in deciding the present case. The parties' briefs in Board of Regents did not address the applicability of Wis. Stat. § lll.92(l)(a).12 No party argued that if Wis. Stat. § 111.92(l)(a) constitutes a rule of *493legislative procedure, the statute is not binding on the legislature and will not be enforced by the courts. Nor did the court of appeals raise this issue sua sponte. The court of appeals showed no awareness of the potential conflict between its analysis and prior case law holding that the courts do not enforce legislative compliance with self-adopted rules of legislative procedure.13

¶ 97. It seems to me that the precise language to be inserted in the Act to satisfy the content requirement of § 111.92(l)(a) may be viewed as a rule of legislative proceeding for the legislature to determine. Why shouldn't the legislature (rather than a court) be able to decide whether exact language from the agreement must be reproduced in the bill? Or whether a reference to the article and section of the agreement is sufficient? Or whether a brief description of the portion of the agreement at issue is adequate? Cannot the legislature (rather than a court) also determine as a matter of procedure whether the statutory law to be modified by a collective bargaining agreement must be set forth in fall (or described or identified by statutory number) in the bill? Why can't the legislature (rather than a court) determine that a reference to and incorporation of the entire collective bargaining agreement is sufficient to satisfy the content requirement under § 111.92(l)(a)?

¶ 98. Anyone reading the collective bargaining agreement in the present case would know that the agreement adopts an exception to the public records statute. Article 2/4/4 of the agreement ratified under 2003 Act 319 explicitly provides that "[njotwithstand*494ing the provisions of § 19.31-19.36 [the public records statute] .. . the Employer will not release any information relating to the names, addresses ... of employees covered by this Agreement."

¶ 99. Although it may be argued that it is for the court to interpret Wis. Stat. § 111.92(l)(a) and to hold the legislature to the court's interpretation of the precise language needed to satisfy the content requirement of § 111.92(l)(a), there is also a good argument that in so interpreting and applying the statute the court would encroach upon the legislature's right to determine the rules of its own proceedings. Arguably, how the legislature must satisfy the content requirement of Wis. Stat. § 111.92(l)(a) and how the legislature must make clear its intent to ratify provisions in a collective bargaining agreement that modify existing law are questions of legislative procedure.

¶ 100. I acknowledge that there is no simple way of distinguishing in close cases between a rule of legislative proceeding and a rule relating to non-procedural matters under the Wisconsin constitution, and the instant case is a close case. When a legislative act does not violate a constitutional provision and there is a reasonable doubt about whether an applicable statute presents a rule of legislative proceeding, I must weigh the various interests involved.

¶ 101. As a member of the judicial branch, I am accustomed to the concept that the words of a statute should be followed and to the concept that fairness requires notice. I would also be more comfortable if the legislature spelled out exactly what statutes it intends to modify when ratifying a collective bargaining agreement. "Such a procedure is endowed with the virtue of avoidance of complex judicial and administrative statu*495tory construction designed to arrive at legislative intent, and minimizes the prospect of interpretive error."14

¶ 102. I am therefore persuaded that the public policy embodied in Wis. Stat. § 111.92(l)(a) governing the content of a bill ratifying a collective bargaining agreement is best served when the bill pinpoints the parts of a collective bargaining agreement that modify existing law. As the Board of Regents court of appeals recognized, § 111.92(1)(a) is designed to serve the important purpose of assuring that the legislature "will be informed of intended changes in existing law" and will have "the consequent opportunity to consider the merits of the changes in conjunction with its approval of [a collective bargaining] agreement"15

¶ 103. I am also persuaded that the legislature has made transparency in government a dominant public policy in this state. Wisconsin prides itself on open government proceedings and open public records. Sunshine is a great disinfectant.

¶ 104. These factors point to holding in favor of the newspapers' position.

¶ 105. Factors exist, however, pointing in the other direction as well. The legislature has used the same kind of language over several years to ratify collective bargaining agreements under Wis. Stat. § 111.92(l)(a). Thus the legislature apparently has concluded that § 111.92(l)(a)'s requirement about the content of a bill ratifying a collective bargaining agreement may be satisfied by a reference to the agreement as a whole.

*496¶ 106. The final factor is the weight to be accorded to each of the equal, coordinate three branches of government. Just as there are realms of exclusive judicial power into which the legislative and executive branches should not enter, so too are there realms of legislative power that are exclusively in the legislature's domain. The Wisconsin Constitution (and our case law) make clear that rules of legislative proceeding are the exclusive domain of the legislature.

¶ 107. In considering all these factors in this close case, I conclude that the balance tips in favor of holding that a court should refrain from interfering with the legislature in the present case under the doctrine of separation of powers embodied in the Wisconsin Constitution and the principle of comity. The legislature's adherence to rules or statutes prescribing legislative procedure (even those regarding the method for satisfying a statute regulating the content of a bill or act) is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by or violates the constitution.16

¶ 108. It is not the role of the court to sit in judgment of the legislature when the legislature's own rules of procedure are at issue and the constitution has not otherwise been violated. Respecting this limit on *497the court's authority, I conclude that 2003 Wisconsin Act 319 is valid in full, even insofar as it ratifies that portion of the collective bargaining agreement amending the public records law.

¶ 109. For the reasons set forth, I dissent.

State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 365, 338 N.W.2d 684 (1983).

*486See also 1 Norman J. Singer Statutes and Statutory Construction § 7.4, at 609-11 (6th ed. 2002) ("The decisions are nearly unanimous in holding that an act cannot be declared invalid for failure of a house to observe its own rules.... The legislature by statute or joint resolution cannot bind or restrict itself or its successors to the procedure to be followed in the passage of legislation."); Charles Luce, Judicial Regulation of Legislative Procedure in Wisconsin, 1941 Wis. L. Rev. 439, 453-54 ("The court will not invalidate an act because it appears that the respective houses of the legislature have not complied with their own rules in passing it.").

State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 365, 338 N.W.2d 684 (1983) (holding that 1983 Wisconsin Act 3 is valid although the enactment procedure may have violated Wis. Stat. § 13.49).

Wisconsin has long followed this rule. See McDonald v. State, 80 Wis. 407, 412, 50 N.W. 185 (1891) ('We think no court has ever declared an act of the legislature void for non-compliance with the rules of procedure made by itself, -or the respective branches thereof, and which it or they may change or suspend at will."); State ex rel. Hunsicker v. Board of Regents, 209 Wis. 83, 86, 244 N.W. 618 (1932) ("It is a well settled principle of law that a statute will not be held void because the legislature did not follow its own rules in the passage of the act. This is on the theory that the legislature has the power to change its rules at any time." (citations omitted)); Outagamie County v. Smith, 38 Wis. 2d 24, 39, 155 N.W.2d 639 (1968) ("This court is without authority to intermeddle in matters of legislative concern. It is a well settled principle of Wisconsin constitutional law that one branch of the government has no authority to compel a co-ordinate branch to perform functions of judgment and discretion that are lawfully delegated to it by the constitution.").

Stitt, 114 Wis. 2d at 365.

For a discussion of the ten Wisconsin Constitution provisions relating to the procedure the legislature is to observe in enacting a statute, see Charles Luce, Judicial Regulation of Legislative Procedure in Wisconsin, 1941 Wis. L. Rev. 439.

Article iy Section 17(1) of the Wisconsin Constitution imposes the requirement that "[t]he style of all laws of the state shall be 'The people of the state of Wisconsin, represented in senate and assembly, do enacted as follows:". This language appears in 2003 Wisconsin Act 319.

In State v. Wakeen, 263 Wis. 401, 57 N.W.2d 364 (1953), for example, the court reviewed a statute regulating the distribution of "drugs" and defining the word "drug" in relevant part as "[a]rticles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them, intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals." *490Wakeen, 263 Wis. at 404 (quoting Wis. Stat. § 151.06). Wakeen contended that the statute represented "an unlawful delegation of legislative authority to the private organizations located outside of the state which compile the publications referred to [in the statute]," particularly insofar as the statute defined "drugs" to include "articles listed in fixture supplements" — that is, documents not yet in existence — to the publications listed in the statute. Wakeen, 263 Wis. at 406-07. The court concluded that the statute did not represent a delegation of legislative authority and was constitutionally valid. See Wakeen, 263 Wis. at 411-12.

In Walgreen Co. v. City of Madison, 2008 WI 80, ¶ 20, 311 Wis. 2d 158, 752 N.W.2d 687, this court interpreted and applied Wis. Stat. § 70.32(1), providing in part that "[r]eal property shall be valued by [a property] assessor in the manner specified in the Wisconsin property assessment manual provided under s. 73.03(2a)...." The property assessment manual is a document that the Department of Revenue prepares, amends from time to time, and publishes in electronic form and on the Internet. Wis. Stat. § 73.03(2a). It does not appear that the text of the property assessment manual may be found in any legislative act.

Custodian of Records v. Wisconsin, 2004 WI 65, ¶ 29, 272 Wis. 2d 208, 680 N.W.2d 792.

Id., ¶¶ 28-29.

At the time the court of appeals decided the Board of Regents case, Wis. Stat. § 111.92(l)(a) was numbered as § 111.92(1).

The Board of Regents court of appeals stated that in § 111.92(1), ”[t]he legislature has chosen a method for approval of a collective bargaining agreement that assures it will be informed of intended changes in existing law, with the consequent opportunity to consider the merits of the changes in conjunction with its approval of the agreement.... The procedure avoids unfavored implied repeals or amendments, assures that specific legislative acts will control general acts, and also assures statutory harmony." Board of Regents, 103 Wis. 2d at 558.

In Board of Regents the legislature had ratified a collective bargaining agreement granting the Personnel Commission discretionary authority to review the discharge of probationary employees. This provision in the collective bargaining agreement conflicted with statutory provisions in Chapter 230 providing that a probationary employee had no right to appeal a discharge. The Joint Committee on Employment Relations had not introduced a bill containing that portion of the collective bargaining agreement that would amend or add to existing law by granting the Personnel Commission discretionary authority to review the discharge of probationary employees.

Board of Regents, 103 Wis. 2d at 556. See also id. at 557-58.

See Board of Regents, 103 Wis. 2d at 555 n.7.

To the extent that the Board of Regents decision may be viewed as implying that a court will invalidate legislation when the legislature has violated a procedural statutory provision, this implication must be disavowed.

Board of Regents, 103 Wis. 2d at 558.

Board of Regents, 103 Wis. 2d at 558.

If a constitutional violation were involved, a court would interpret and apply the Act in accordance with the Constitution. Although the newspapers argue that the legislature has violated due process by not giving the public adequate notice of the contents of the Act, I am not persuaded by this argument, which has not generally been accepted by courts. A brief by an amicus also argues that the constitution has been violated by the legislature's singling out the press in the collective agreement, but this argument has not been advanced or discussed by any of the parties.