                                                                         2013 WI 91
                                                                 NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.       2012AP2067


STATE OF WISCONSIN                           :            IN SUPREME COURT

Madison Teachers, Inc., Peggy Coyne, Public
Employees Local 61, AFL-CIO and John Weigman,

              Plaintiffs-Respondents,
                                                                      FILED
      v.
                                                                 Nov 21, 2013
Scott Walker, James R. Scott, Judith Neumann
and Rodney G. Pasch,                                                Diane M. Fremgen
                                                                 Clerk of Supreme Court
              Defendants-Appellants.




      ¶1      PER CURIAM.     This case is currently pending before us
on a certification from the court of appeals.               Madison Teachers,
Inc. v. Scott Walker, No. 2012AP2067 (Wis. Ct. App. April 25,

2013).      That certification presents a number of constitutional
questions      related   to   the   September      14,    2012,        declaratory
judgment of the Dane County Circuit Court.1              During the pendency
of the appeal, the circuit court held Defendant-Appellants James
R. Scott and Rodney G. Pasch (collectively, "Commissioners") in
contempt.       Thereafter,    Scott   Walker,    James     R.     Scott,      Judith


      1
          Judge Juan B. Colas presiding.
                                                                                No.        2012AP2067



Neumann, and Rodney G. Pasch (collectively "State Defendants")
brought an emergency motion to stay the contempt order in the
court of appeals, which the court of appeals denied.                                   The State
Defendants now petition this court to stay declaratory judgment
and any subsequent circuit court orders.
        ¶2     We   do    not    rule       on    the     stay     of    the   September        2012
declaratory judgment.                 However, for the reasons discussed in
this     opinion,        we    conclude          that     the      contempt     order        issued
subsequent       to    the     appeal       from       the    circuit     court    declaratory
judgment       constituted          an    impermissible            interference        with      the
appellate jurisdiction of this court.                           We therefore exercise our
superintending           authority        to     vacate      the   contempt       order,       which

renders the State Defendants’ motion to stay the contempt order
moot.
                                            I. BACKGROUND
        ¶3     On     August        24,     2011,       Plaintiff-Respondents               Madison
Teachers, Inc., Peggy Coyne, Public Employees Local 61, AFL-CIO,
and     John     Weigman        (collectively           "MTI       Plaintiffs")        filed      an
amended       complaint        in     Dane       County       Circuit      Court      seeking      a
declaration that certain portions of 2011 Wis. Acts 10 and 32
violated the Wisconsin Constitution and asking for injunctive
relief.        On September 14, 2012, the court issued a decision and
order        ("September       2012       declaratory           judgment")      that        granted
partial       summary     judgment        to     the    MTI     Plaintiffs.           It    granted

declaratory, but not injunctive, relief.
        ¶4     On   September         18,      2012,     the     State    Defendants         timely
filed a notice of appeal from the September 2012 declaratory
                                                   2
                                                                    No.    2012AP2067



judgment.      On October 11, 2012, the record was transmitted to
the court of appeals.
       ¶5   After appealing, the State Defendants filed a motion
to stay the September 2012 declaratory judgment pending appeal
in the circuit court, pursuant to Wis. Stats. §§ 808.07(2)(a)(3)
and 809.12.      On October 22, 2012, the circuit court denied that
motion.
       ¶6   On October 25, 2012, the State Defendants moved the
court of appeals for a stay pending appeal, which the court of
appeals denied.
       ¶7   On April 25, 2013, the court of appeals certified the
appeal of the September 2012 declaratory judgment to this court.

On June 14, 2013, we accepted certification of the appeal.
       ¶8   On April 23, 2013, just prior to certification of the
appeal by the court of appeals, the MTI Plaintiffs asked the
circuit court for an injunction for a second time.                     On September
17, 2013, the circuit court denied injunctive relief, reasoning
that the State Defendants' continued enforcement of Acts 10 and
32 against non-parties was not harming MTI plaintiffs.
       ¶9   On September 24, 2013, without moving to intervene,
the Wisconsin Education Association Council, AFT-Wisconsin, AFL-
CIO,   AFL-CIO    District   Council     40,    SEIU     Healthcare       Wisconsin,
CTW,    CLC,     Wisconsin   Federation        of      Nurses    and      Healthcare
Professionals,     AFSCME,   and   the     Kenosha       Education      Association

(collectively     "Non-Party   Unions")        moved    the     circuit    court   to
hold the Commissioners in contempt and for remedial sanctions.
The Non-Party Unions argued that the Commissioners' continued
                                       3
                                                                        No.    2012AP2067



enforcement of the challenged portions of Acts 10 and 32 against
them constituted intentional disobedience of the circuit court's
September 2012 declaratory judgment.2
      ¶10    On October 21, 2013, the circuit court, in an oral
ruling, held the Commissioners in contempt of the September 2012
declaratory judgment.           On October 25, the circuit court filed a
written contempt order, in which it detailed the conditions that
the   Commissioners        would    have    to    meet   to   purge    the     contempt.
Among those conditions was a total halt to the enforcement of
the   challenged      portions      of    Acts    10    and   32    against    all    non-
parties.
      ¶11    On     October     25,      2013,    the    State      Defendants        filed

emergency motions in this court and in the court of appeals.                            In
the court of appeals, the State Defendants sought a stay of the
circuit court's contempt order pending appeal, pursuant to Wis.
Stats. §§ 808.07(2)(a)1 and 809.12.                     In this court, the State
Defendants        sought   an   emergency        stay    of    the    effect     of    the
September 2012 declaratory judgment and a stay of enforcement of
circuit     court     orders       issued       subsequent     to     that    judgment,
pursuant to Wis. Stats. §§ 808.07(2)(a)1 and 809.12, which is
now before us.




      2
       Several of the Non-Party Unions previously litigated the
constitutionality of Act 10 in another court and lost on those
challenges.   See Wis. Educ. Ass’n Council v. Walker, 705 F.3d
640 (7th Cir. 2013), in which AFT-WI, AFL-CIO and Dist. Council
40, AFSCME, AFL-CIO, participated.



                                            4
                                                                                 No.    2012AP2067



        ¶12       On October 28, 2013, the court of appeals entered an
order requesting a response brief from the Non-Party Unions on
the motion for a stay of the contempt order pending appeal.                                        The
court of appeals also announced its intention to decide the stay
issue by November 4, 2013.                The next day, this court entered an
order indicating that we would take no action on the request for
emergency relief before us until after the court of appeals had
issued its decision.
        ¶13       On November 4, 2013, the court of appeals denied the
State       Defendants’        motion    for   a    stay        of   the    contempt          order
pending       appeal      of    that    order.3       On    November         5,        the    State
Defendants renewed their request for relief from the September

2012 declaratory judgment in this court, and further requested
relief from the contempt order.
        ¶14       On November 7, 2013, the Non-Party Unions moved this
court       for    permission     to    participate        in    oral      argument          and    to
intervene in the action pending before us.                           On November 8, 2013,
the Non-Party Unions filed briefs in this court.                             We heard their
positions and did not strike their briefs.                           On November 8, 2013,
we denied the Non-Party Unions’ motion because it was not timely
brought.
        ¶15       The   State   Defendants         have    brought         two    pending          and
related matters before this court and have asked for relief.
First, the State Defendants ask this court to stay the circuit

        3
       Madison Teachers, Inc. v. Scott Walker, No. 2013AP2405
(Ct. App. Nov. 4, 2013).



                                               5
                                                                               No.    2012AP2067



court's October 25, 2013, contempt order.                              Second, the State
Defendants request a stay of the circuit court's September 14,
2012, declaratory judgment holding certain portions of 2011 Wis.
Acts    10     and    32   unconstitutional.             The     State    Defendants        list
alternate          sources    of    authority        upon      which     the    relief      they
request       may    be    granted.         We   now    deny     the    State       Defendants'
motion        to    stay     the    declaratory         judgment       and     exercise      our
superintending authority to vacate the contempt order because it
interferes with our appellate jurisdiction.
                                          II.    ANALYSIS
        ¶16        Article VII, Section 3 of the Wisconsin Constitution
vests       this     court      with      superintending          authority          over    all

Wisconsin courts.4             This authority "is as broad and as flexible
as necessary to insure the due administration of justice in the
courts of this state."                In re Kading, 70 Wis. 2d 508, 520, 235
N.W.2d        409     (1975);       see     also       Arneson     v.     Jezwinski,         206
Wis. 2d 217,          225,    556     N.W.2d 721        (1996)     (our        superintending
authority "endows this court with a power that is indefinite in
character,          unsupplied      with     means      and     instrumentalities,           and
limited only by the necessities of justice").                            It authorizes us
"to    control       the     course    of    ordinary       litigation         in    the    lower
courts of Wisconsin."                 Arneson, 206 Wis. 2d at 226.                      Because
this court's superintending authority flows from the Wisconsin


        4
       Article VII, Section 3 of the Wisconsin Constitution
provides in pertinent part: "The supreme court shall have
superintending and administrative authority over all courts."



                                                 6
                                                                             No.     2012AP2067



Constitution, the legislature may not limit that authority.                                  See
State v. Pollard, 112 Wis. 232, 236, 87 N.W. 1107 (1901).
      ¶17    It is well established that this court may protect its
appellate    jurisdiction        by    the    exercise       of      its    superintending
authority.     See Petition of Heil, 230 Wis. 428, 433, 284 N.W. 42
(1938)   (declaring       that     this      court   "upon        its      own     motion    may
undoubtedly     protect        its     jurisdiction          by       the        exercise     of
superintending       control");        see    also      Prof.        Jay    E.     Grenig,     1
Wisconsin Pleading & Practice Forms § 2:52 (5th ed. 2013).                                   We
have previously exercised our superintending authority to review
a circuit court's order of contempt.                  See State ex rel. Reynolds
v.   Cnty.   Court       of   Kenosha      Cnty.,     11    Wis. 2d 560,            566,     105

N.W.2d 876 (1960) (concluding that the "importance of the issues
involved"     merited         exercise       of   the       court's         superintending
authority).         Because     the   contempt       order      in    the     present       case
expanded the scope of the judgment that is before us on appeal,
we exercise our superintending authority to vacate the contempt
order.
      ¶18    Once    a    Notice      of   Appeal     has    been          filed    with    the
circuit court and the record has been transmitted to the court
of appeals, a circuit court's authority is limited.                                Wis. Stat.
§ 808.075(3) (a circuit court "retains the power to act on all
issues until the record has been transmitted to the court of
appeals").     "An appeal from a judgment or order strips the trial
court of jurisdiction with respect to the subject matter of the
judgment or order, except in certain unsubstantial and trivial
matters,” unless explicit contrary authority is noted in the
                                             7
                                                                       No.     2012AP2067



statutes.      See In re Estate of Mayer, 29 Wis. 2d 497, 505, 139
N.W.2d 111 (1966).
      ¶19   The     September      2012      judgment       declared    that    certain
portions of Acts 10 and 32 were unconstitutional, stating:
           For the reasons stated above, the court grants summary
     judgment in favor of the plaintiffs, denies the defendants'
     motion for judgment on the pleadings and declares that Wis.
     Stat.   §§    66.0506,   118.245,   111.70(1)(f),   111.70(3g),
     111.70(4)(mb) and 111.70(4)(d)3 violate the Wisconsin and
     United States Constitution, and Wis. Stat. § 62.623 violates
     the Wisconsin Constitution and all [sic] null and void. This is
     a final order as defined by Wis. Stat. § 808.03(1) for purposes
     of appeal.
It did not grant the injunctive relief that MTI Plaintiffs

had requested.

      ¶20   When the circuit court issued its contempt order more

than a year after the record had been transmitted to the court

of   appeals     and      after   we   had       accepted      certification    of    the

appeal, it expanded the scope of the September 2012 declaratory

judgment by granting injunctive relief to non-parties.                         That is,

by   requiring      the    Commissioners         to    cease    application    of    MERA

against non-parties in order to purge the contempt order, the

circuit     court      granted    different           relief    than   it    originally

granted in the September 2012 order.5

      5
       "[J]udicial remedies fall into four major categories:
damages remedies, restitutionary remedies, coercive remedies
(such as injunctions that are backed by the court's contempt
power) and declaratory remedies." Johnson Controls, Inc. v.
Employers Ins. of Wausau, 2003 WI 108, ¶40, 264 Wis. 2d 60, 665
N.W.2d 257 (citing Dobbs, Handbook on the Law of Remedies, § 1.1
at 1 (1973)).


                                             8
                                                                  No.     2012AP2067



        ¶21   We are mindful of the pressures a circuit court can
face from aggressive litigation in high-profile cases.                    However,
when the appeal of a circuit court’s prior decision is pending
before this court, the circuit court must take care to avoid
actions that may interfere with the pending appeal.                        Once an
appeal had been perfected, the circuit court should not have
taken     any      action    that     significantly    altered   its     judgment.
Accordingly, in order to assure the orderly administration of
justice       in    the     pending     appeal,   we   elect     to     apply   our
superintending authority and vacate the circuit court’s contempt
order.



        By the Court.—The contempt order of the circuit court is
vacated.




                                           9
                                                                 No. 2012AP2067.ssa & awb


        ¶22    SHIRLEY      S.   ABRAHAMSON,       C.J.    and   ANN     WALSH   BRADLEY,
J. (dissenting).             Essential        to    our    system       of    justice    is
adherence to the rule of law.                  The per curiam today attempts to
transform the rule of law into an untenable rule of defiance:
government officials who are defendants in a case need not obey
a court's declaratory judgment that precludes enforcement of a

facially unconstitutional statute.
        ¶23    A novel case such as this one, involving issues of
great       national       importance        and   core    constitutional         rights,
deserves a well-reasoned and well-supported decision.                            Instead,
the per curiam's numerous legal errors demonstrate a disregard
for the law and muddy the waters of our jurisprudence.                            Perhaps
the most troubling aspect of today's decision is that the court
inflates its own power while disrespecting the authority of the

circuit court and the court of appeals, as well as the judicial
process.
        ¶24    The    court's     per    curiam     opinion      today       discards   the
longstanding         law    of   this    state.       First,      it    authorizes      the
executive to disobey the declaratory judgments of the judiciary.
Second, it strips circuit courts of the ability to protect those
judgments.          Third, it ignores our prior restraint in applying
our broad superintending powers to ordinary circumstances.
        ¶25    Further, the process utilized by the per curiam is
fundamentally unfair.              The process denied the six respondent
unions1       the    opportunity        to   be    heard    at    the    oral    argument


        1
       Wisconsin Education Association Council; AFT-Wisconsin,
AFL-CIO;  SEIU   Healthcare Wisconsin,  CTW,   CLC;   Wisconsin
                                                    (continued)
                              1
                                                                    No. 2012AP2067.ssa & awb


regarding     their       motion        for    contempt.       By   fashioning          its   own
remedy based on a novel approach neither briefed nor argued by
anyone in this case, the per curiam has also denied the rights
of all parties to be heard.
      ¶26     The        per    curiam        decision,      contrary      to    the    law   and
procedure of this state, leaves in its wake unanswered questions

that will cause confusion and uncertainty.                          The extreme measures
the per curiam has taken to vacate the contempt order suggest it
has   seen    fit        to     reach     its      outcome     through      whatever      means
necessary,      rather          than     through       the     cautious         and    measured
deliberation this court traditionally applies when reviewing all
cases.
      ¶27    Accordingly, we respectfully dissent.
                                                   I

      ¶28    The per curiam ignores the well-established law that
when a declaratory judgment is entered against state officers,
it is the practical equivalent of an injunction against those
officers.           It     is     only        by   ignoring     this       well-established
precedent that the per curiam is able to make the claim that the
October      2013    contempt           order      interfered       with        its    appellate
jurisdiction by expanding the scope of the original declaratory
judgment.



Federation of Nurses and Health Care Professionals, AFT, AFL-
CIO; Kenosha Education Association; and District Council 40,
AFSCME, AFL-CIO. Hereinafter, we refer to them collectively as
"respondent unions" as did the court of appeals. See In re the
Contempt in Madison Teachers, Inc. v. Walker, Case No.
2013AP2405, unpublished order at 3 (Wis. Ct. App. Nov. 4, 2013).

                                                   2
                                                         No. 2012AP2067.ssa & awb


      ¶29       If there is adherence to the rule of law, the per
curiam's claim cannot survive scrutiny.
      ¶30       The per curiam asserts that "[w]hen the circuit court
issued its contempt order . . . , it expanded the scope of the
September        2012   declaratory     judgment   by    granting   injunctive
relief to non-parties.            That is, by requiring the Commissioners

to cease application of MERA against non-parties in order to
purge the contempt order, the circuit court granted different
relief than it originally granted in the September 2012 order."
Per curiam op., ¶20.
      ¶31       The contempt order did not expand the scope of the
September 2012 judgment.           There is no difference in relief.         The
injunctive relief granted in the contempt order is legally no
different in practical effect than the relief granted in the

declaratory judgment.
      ¶32       The United States Supreme Court has adhered to this
rule of law for decades.2            Then-Judge Scalia aptly described it
as follows: "[T]he         discretionary relief of declaratory judgment
is,   in    a    context   such    as   this   where    federal   officers   are
defendants, the practical equivalent of specific relief such as
injunction or mandamus, since it must be presumed that federal

      2
       See, e.g., Samuels v. Mackell, 401 U.S. 66, 72 (1971)
(holding that the creation of potential remedies after issuance
of the declaratory judgment pending appeal "has virtually the
same practical impact as a formal injunction would"); see also
Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63
Duke L.J. at 38, forthcoming 2014 ("[I]n many cases where a
plaintiff seeks prospective relief, a declaratory judgment and
an injunction are functionally interchangeable.     Both resolve
uncertainty about the law and both bind the losing party.").


                                         3
                                                                 No. 2012AP2067.ssa & awb


officers     will      adhere   to   the    law      as    declared     by    the    court."
Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir.

1985).
      ¶33    The rationale underlying the rule that a declaratory
judgment         against    a   government           officer     is     the     functional
equivalent        of   an   injunction      rests         on   the    premise       that   the

government official will adhere to a judicial decision declaring
a statute facially unconstitutional. "[W]e have long presumed
that officials of the Executive Branch will adhere to the law as
declared by the court.           As a result, the declaratory judgment is
the   functional        equivalent     of       an     injunction."          Committee      on
Judiciary of U.S. House of Representatives v. Miers, 542 F.3d
909, 911 (D.C. Cir. 2008).3
      ¶34    Likewise, the Wisconsin Supreme Court has acknowledged

this well-established precedent.                     Just a few years ago, in an
opinion authored by Justice Prosser, the court explained the
import      of    a    declaratory    judgment            that   declares       a    statute
unconstitutional on its face: "[t]he state may not enforce it
under any circumstances, unless an appropriate court narrows its

      3
       See also Mark P. Gergen, John M. Golden & Henry E. Smith,
The Supreme Court's Accidental Revolution? The Test for
Permanent Injunctions, 112 Colum. L. Rev. 203, 206, 241 (2012)
(noting that courts have determined no additional requirements
are needed to render a declaratory judgment effective against a
government actor unless "a party cannot be trusted to respect
rights in the future," thus requiring an injunction); Virginia
ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 790 (E.D.
Va. 2010), vacated on other grounds, 656 F.3d 253 (4th Cir.
2011) (holding that "the award of declaratory judgment is
sufficient to stay the hand of the Executive branch pending
appellate review").


                                            4
                                                            No. 2012AP2067.ssa & awb


application."         Olson v. Town of Cottage Grove, 2008 WI 51, ¶44

n.9, 309 Wis. 2d 365, 749 N.W.2d 211 (emphasis added) (quoting
Michael        C.   Dorf,     Facial    Challenges     to   State      and     Federal
Statutes, 46 Stan. L. Rev. 235, 236 (1994)).4
        ¶35    As this court then recognized, a declaratory judgment
that determines that a statute is unconstitutional on its face

means       that    the    statute   "always    operates    unconstitutionally."
Olson,        309   Wis.    2d   365,   ¶44    n.9      Because     it    is   always
unconstitutional, such a declaration of unconstitutionality has
the practical effect of an injunction as a state defendant is
prohibited from enforcing the statute.                   See Maness v. Meyers,
419 U.S. 449, 458-59 (1975); State v. Konrath, 218 Wis. 2d 290,
304 n.13, 577 N.W.2d 601 (1998).
        ¶36    Now, the per curiam does an about-face on the law.                  It

attempts to transform the rule of law into an untenable rule of
defiance: government officials who are defendants in a case need
not obey a court's declaratory judgment that precludes them from
enforcing facially unconstitutional statutes.
        ¶37    "A    declaratory     judgment    is   binding     on     the   parties
before the court." 10B Fed. Prac. & Proc. Civ. § 2771 (Wright &
Miller, 3d ed. 2013) (emphasis added).                  The Commissioners were
clearly parties before the court when the circuit court granted
its   September       2012    summary   judgment      determining      that    several
statutory sections were facially unconstitutional and therefore



        4
       See also State v. Konrath, 218 Wis. 2d 290, 304 n.13, 577
N.W.2d 601 (1998); Poe v. Gerstein, 417 U.S. 281, 281-82 (1974).


                                           5
                                                        No. 2012AP2067.ssa & awb


"null and void."5        Because the unconstitutional "null and void"
provisions      cannot       be     legally     enforced,    the      defendant
Commissioners were precluded from enforcing those provisions.
     ¶38     On October 22, 2012, the circuit court reiterated the
binding      effect     of    its       declaratory    judgment      upon    the
Commissioners by denying their motion to stay the judgment.                  The

primary ground for the denial was that if a stay were granted,
"the plaintiffs (and tens of thousands of municipal employees)
will have suffered irreparable harm in the form of continued
violation of their fundamental constitutional rights by their
government."6        Thus, the circuit court indicated that the order
bound the Commissioners as to all municipal employees.
     ¶39     On September 17, 2013, the circuit court explicitly
told the WERC Commissioners that they "are bound by the court's

judgment,     even    with    respect     to   their   actions     toward   non-
parties."      Madison Teachers, Inc. v. Walker, No. 2011CV3774,
unpublished order at 3 (Dane Cnty. Cir. Ct. Sept. 17, 2013.
     ¶40     Accordingly,         the   contempt    order   prohibiting      the
Commissioners from enforcing the disputed provisions of Act 10
did not expand the scope of the September 14, 2012 judgment; it
merely restated what the WERC Commissioners already knew: the

     5
       The uniform declaratory judgments act makes clear that
circuit courts "shall have power to declare rights, status, and
other legal relations whether or not further relief is or could
be claimed."    Wis. Stat. § 806.04(1).     The statute further
states that the declaration "shall have the force and effect of
a final judgment or decree . . . ." Wis. Stat. § 806.04(1).
     6
        Madison Teachers, Inc. v.                  Walker, No. 2011CV3774,
unpublished order at 6 (Dane Cnty.                 Cir. Ct. Oct. 22, 2012)
(emphasis added).

                                          6
                                                                    No. 2012AP2067.ssa & awb


statutes       were     null     and    void     and    they     were       precluded      from
enforcement as to all persons.
        ¶41    This court has previously emphasized the importance of
declaratory          judgments    in     their    effect       on     government      actions
towards       all    affected     parties,       not   merely       the    parties    to     the
suit:

        We have not construed Wis. Stat. § 806.04(11) to
        require "that where a declaratory judgment as to the
        validity of a statute or ordinance is sought, every
        person whose interests are affected by the statute or
        ordinance must be made a party to the action." If the
        statute "were so construed, the valuable remedy of
        declaratory judgment would be rendered impractical and
        indeed often worthless for determining the validity of
        legislative enactments, either state or local, since
        such enactments commonly affect the interests of large
        numbers of people."
Helgeland       v.    Wisconsin        Municipalities,         2008    WI    9,   ¶140,      307
Wis. 2d 1, 745 N.W.2d 1 (quoting Town of Blooming Grove v. City
of Madison, 275 Wis. 328, 334, 81 N.W.2d 713 (1957)).
        ¶42    The per curiam holding today would seem to require
every individual person or organization affected by Act 10 to
litigate a separate suit, eliminating the efficiency benefits
and     practicality       of     declaratory          judgment       as    applied     to    a
governmental actor.            Such duplicative litigation is unworkable.7

        7
       Additionally, such duplicative litigation appears to be
unnecessary because defiance, whether by government or non-
government parties, of a court's declaratory judgment appears
exceedingly rare:

        What is quite rare is . . . the situation where a
        plaintiff wins a declaratory judgment, the defendant
        disobeys, and the plaintiff goes back to court to get
        an injunction.   In fact, the total number of cases
        with published opinions involving that fact pattern
                                                       (continued)
                                  7
                                                                       No. 2012AP2067.ssa & awb


        ¶43    The        oft-stated,      oft-repeated         legal     maxim     is    clear:
declaratory judgments are treated functionally as injunctions,
when applied to governmental parties who are bound by the force
and meaning of judgments under the law.                           Contrary to the claim
of   the      per    curiam,      the    circuit       court    did     not    "fundamentally
alter[]"       the     September        2012    order,     per    curiam       op.,      ¶21;    it

merely        sought       to    enforce       the    proper     legal        effect     of     its
declaratory judgment.                   The WERC Commissioners, who are party
defendants,         cannot       enforce    a    statute        that    the    judiciary        has
found facially unconstitutional.
                                                 II
        ¶44    The per curiam opinion strips not only the circuit
court judge in this case, but all judges, of important statutory
authority to enforce their lawful judgments.

        ¶45    This case is not about whether a Dane County circuit
court      judgment        can   bind    other        circuit    courts       throughout        the
state.        It is not about the ability of a circuit court to bind
non-parties          to    an    action.        Rather,     this       case    is   about       the
ability of a circuit court judge to issue a judgment that binds
government officials who are parties in an action before the
court and the authority of a circuit court judge to enforce its
judgment.

        under Section 2202 appears to be roughly a dozen [out
        of thousands] . . . . The meager use of this provision
        throughout its nearly eighty-year history shows that
        there   is  no  pattern  of   disregarded  declaratory
        judgments."

Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63
Duke L.J. at 25-26, forthcoming 2014.

                                                 8
                                                            No. 2012AP2067.ssa & awb


       ¶46    Specifically, the per curiam strips the circuit court
of its statutory authority to protect its September 14, 2012
judgment      with   a   contempt    order,    asserting         that   the   circuit
court's power during an appeal starts and ends with Wis. Stat.
§ 808.075(3).        Per curiam op., ¶18.         However, it relies on the
first portion of that subsection ("the circuit court retains the

power to act on all issues until the record has been transmitted
to the court of appeals") and conveniently ignores the sentence
that follows: "Thereafter, the circuit court may act only as
provided in subs. (1) and (4)."            Wis. Stat. § 808.075(3).
       ¶47    The    circuit    court       retains     broad       powers      under
subsection       (1).8      During    an      appeal    a    circuit       court   is
specifically permitted to act under Wis. Stat. § 808.07(1) and
(2).       Wis. Stat. § 808.075(1).        Wisconsin Stat. § 808.079 lists a
       8
       Wisconsin Stat. § 808.075(1) provides: "In any case,
whether or not an appeal is pending, the circuit court may act
under ss. 804.02(2), 805.15, 805.16, 805.17(3), 806.07, 806.08,
806.15(2), 806.24(4), 808.07(1) and (2) and 809.12."
       9
           Wisconsin Stat. § 808.07(2) states:

            (2) AUTHORITY OF A COURT TO GRANT RELIEF PENDING
       APPEAL.

            (a) During the pendency of an appeal, a trial
       court or an appellate court may:

           1. Stay execution or enforcement of a judgment or
       order;


           2.   Suspend,       modify,        restore       or     grant      an
       injunction; or

           3. Make any order appropriate to preserve the
       existing state of affairs or the effectiveness of the
       judgment subsequently to be entered.
                                                      (continued)
                                  9
                                                                       No. 2012AP2067.ssa & awb


number of actions a circuit court may take during the pendency
of an appeal, including "[m]ak[ing] any order appropriate to

preserve the existing state of affairs or the effectiveness of
the    judgment              subsequently       to     be     entered."              Wis.    Stat.
§ 808.07(2)(a)3 (emphasis added).
       ¶48       In    this     case,    the      circuit     court     used        the    tool   of

sanctions        for     civil     contempt,         defined      under       the    statute      as
"disobedience,               resistance,     or      obstruction        of    the     authority,
process or order of a court."                         Wis. Stat. § 785.01(b).                     The
Commissioners disobeyed the order of the court by continuing to
enforce      a    statute        despite    the      declaratory        judgment          rendering
that   statute          null     and    void.        The    circuit     court       subsequently
imposed sanctions.
       ¶49       Nowhere in the statutes governing contempt does the

law    state          that     circuit     courts'         authority     to    "preserve          the
effectiveness of the judgment" is restricted by the pendency of
an appeal, especially in the face of disobedience of a court
mandate.         Indeed, for this underlying assertion, the per curiam
points to no authority whatsoever.
       ¶50       No    case     law     requires      us     to   hew    to    a     formalistic
reading of contempt that requires a formal injunction proceeding
before contempt can lie.10                      Such a requirement would severely

           (am) During the pendency of an appeal, the trial
       court may hear and determine a motion filed under s.
       806.07.
       10
       "It does not lie in their mouths to say that they have an
immunity from civil contempt because the plan or scheme which
they adopted was not specifically enjoined. Such a rule would
give tremendous impetus to the program of experimentation with
                                                     (continued)
                               10
                                                           No. 2012AP2067.ssa & awb


circumscribe a court's authority to remedy a disobedience of its
orders and judgments.
        ¶51     Furthermore, the circuit court here was well within
its authority to entertain motions by the respondent unions that
were not parties to the original lawsuit.              The contempt statute
specifies that one need not be a party to the action in order to

file a contempt motion: "[a] person aggrieved by a contempt of
court     may     seek   imposition   of    a   remedial     sanction    for   the
contempt by filing a motion for that purpose in the proceeding
to which the contempt is related."               Wis. Stat. § 785.03(1)(a).
The Wisconsin Judicial Council comments to Wis. Stat. § 785.03
define a "person aggrieved" as follows: "Any person aggrieved by
the contempt, even one not a party to the principal proceeding."
Judicial Council Committee's Note, 1979, § 785.03, Stats.

        ¶52     The circuit court is statutorily empowered to enforce
its original declaratory judgment by any order.                   If there is a
pending appeal, it is still empowered to act under Wis. Stat.
§ 808.07(2)(a)3.         Here, the circuit court carefully followed the
statutory bounds of its authority pending appeal and attempted
to manage the case to maintain the status quo.                    Indeed the per
curiam opinion cannot point to a single jurisdictional or legal
error made by the circuit court.
                                       III
        ¶53     The   WERC   Commissioners      requested     a   stay    of   the
contempt order.          The per curiam grants the Commissioners more


disobedience of the law."         McComb v. Jacksonville Paper Co., 336
U.S. 187, 192 (1949).

                                       11
                                                                 No. 2012AP2067.ssa & awb


than they requested: the majority vacates the contempt order.

Why?     Because      if   the    per    curiam     were    to     follow    the    rules
applicable to a stay it would have to reach the same result as
the court of appeals:11           "No stay."
        ¶54     Thus, the per curiam, without the benefit of briefs or
argument on the issue of superintending power and vacating the

contempt order, vacates the contempt order under the court's
superintending powers.12
        ¶55     The per curiam doubly errs:                 First, the use of the
court's superintending power in the present case violates the
teachings of all the cases the per curiam cites (and then some)
about         the    nature      and     function      of        the    constitutional
superintending power.            Second, as we have discussed, no grounds
exist,       regardless    of    the    procedural    maneuver         the   per   curiam

uses, for this court to vacate the contempt order in the present
case.          The   circuit     court    acted     within       its    statutory     and
constitutional authority to issue the contempt order.




        11
       In re Contempt in Madison Teachers, Inc. v. Walker, No.
2013AP2405, unpublished order (Wis. Ct. App. Nov. 4, 2013).
        12
       In 1848, Article VII, Section 3 of the Wisconsin
Constitution provided:    "The supreme court shall have general
superintending control over all inferior courts . . . ."

      The present Article VII, Section 3 provides in relevant
part:     "The supreme court shall have superintending and
administrative authority over all courts. . . ."

     For an historical discussion of the court's superintending
power, see James D. Wickhem, The Power of Superintending Control
of the Wisconsin Supreme Court, 1941 Wis. L. Rev. 153.

                                           12
                                                            No. 2012AP2067.ssa & awb


     ¶56     The   per     curiam      opinion     today     sets        a     dangerous
precedent:     The per curiam tosses aside procedural rules, long-
standing     self-imposed        limits    on    the   court's       superintending
powers, and legal analysis and explanation in favor of a facile
resolution, disregarding the wisdom of our jurisprudence.
     ¶57     The   case    law    admonishes      us   to    limit       use       of   the

superintending power to situations in which:
  (1)     there    is     no   other      adequate     remedy,      by       appeal      or
          otherwise;13

  (2)     the conduct of the trial court threatens seriously to
          impose a significant hardship upon a citizen;14                     or
  (3)     it is required by the exigency of the circumstances.15


     13
       This court "will not exercise its [superintending]
jurisdiction when there is another adequate remedy, by appeal or
otherwise."   State ex rel. Reynolds v. County Court of Kenosha
County, 11 Wis. 2d 560, 565, 105 N.W.2d 876 (1960); see also
State ex rel. Hustisford Light, Power & Mfg. Co. v. Grimm, 208
Wis. 366, 371, 243 N.W. 763 (1932) ("In the event that the
attempt is made to invoke the superintending power to correct an
error of the trial court, it is necessary to establish that an
appeal from a final judgment is inadequate . . . . ").
     14
        "[T]he purpose of [superintending] jurisdiction is the
protection of a person in his rights as litigant."       In re
Kading, 70 Wis. 2d 508, 520, 235 N.W. 409 (1975) (internal
quotations omitted) (quoting Petition of Heil, 230 Wis. 428,
433, 284 N.W. 42 (1939)).
     15
       This court has historically used its superintending power
only when the exigency is of such an extreme nature as to
justify the extraordinary superintending powers of this court.
See State ex rel. Reynolds v. County Court of Kenosha Cnty., 11
Wis. 2d 560, 565, 105 N.W. 876 (1960) (quoting State ex rel.
Tewalt v. Pollard, 112 Wis. 232, 234, 87 N.W. 1107 (1901))
("[T]his   court  will   not   exercise   its   [superintending]
jurisdiction . . . unless the exigency is of such an extreme
nature as obviously to justify and demand the interposition of
                                                     (continued)
                               13
                                                              No. 2012AP2067.ssa & awb


     ¶58     The   present       case   does      not   fit   into    any   of    these
circumstances or any other circumstances justifying use of this
extraordinary      constitutional         power    to   vacate    a   circuit     court
order before deciding the merits of the matter.
     ¶59     First,      other     adequate       remedies,      indeed     the    very
remedies requested by the State, exist to address the contempt

order.       Yet   the    per    curiam    ignores      these     remedies    without
explanation:

         •   The court may grant relief pending appeal, pursuant to
             Wis. Stat. § 809.12 and Wis. Stat. § 808.07(2)(a)1.;
         •   The court may issue a supervisory writ pursuant to
             Wis. Stat. § 809.71;
         •   The     court   may    take     jurisdiction        of   the    contempt
             proceedings        pending    in     the   court    of   appeals     (case

             number 2013AP2405), on its own motion pursuant to Wis.
             Stat. § 809.61; or
         •   The WERC Commissioners could have sought to bypass the
             court     of    appeals       with     regard       to   the    contempt
             proceedings pursuant to Wis. Stat. § 809.61.
     ¶60     Second, the per curiam fails to establish that a grave
hardship will follow unless the contempt order is vacated.16

the extraordinary superintending power of the court of last
resort of the state.")(citations omitted.).
     16
        Arneson   v.  Jezwinski,   206   Wis. 2d 217,   226,   556
N.W.2d 721    (1996)  ("This   court   will   not   exercise   its
superintending power . . . where the conduct of the trial court
does not threaten seriously to impose a significant hardship
upon a citizen.")(citations omitted).     See also State ex rel.
Hustisford Light, Power & Mfg. Co. v. Grimm, 208 Wis. 366, 371,
243 N.W. 763 (1932) ("In the event that the attempt is made to
invoke the superintending power to correct an error of the trial
                                                       (continued)
                                14
                                                           No. 2012AP2067.ssa & awb


     ¶60    Third, no exigency or emergency exists in the present
case to justify the use of superintending powers.                       The WERC
Commissioners       knew    by   reason        of   the    September   14,    2012
declaratory judgment and the October 22, 2012 order17 that the

circuit court viewed its declaration of unconstitutionality as
binding the Commissioners across the state.                     WERC's contempt

order in October 25, 2013, did not expand the scope of the
judgment, as the per curiam erroneously claims, per curiam op.,
¶¶17, 20.
     ¶61    In addition, the WERC Commissioners requested but did
not get stays of the circuit court declaratory judgment in both
the circuit court and court of appeals.                     The stay was first
denied by the circuit court on October 22, 201218 and then denied
by   the    court   of     appeals   on    March     13,    2013.19     The   WERC

Commissioners did not seek a stay in this court in the spring of
2013 or appeal the denials of the stay to this court.
     ¶62     The WERC Commissioners also knew that their continued
enforcement of the null and void statute would create confusion
across the state.          In December 2012, one year ago, over thirty


court, it is necessary to establish . . . that grave hardship
will follow a refusal to exercise the power.").
     17
        The circuit court declared that its declaratory judgment
affects "the plaintiffs (and tens of thousands of municipal
employees)." Madison Teachers, Inc. v. Walker, No. 2011CV3774,
unpublished order at 6 (Dane Cnty. Cir. Ct. Oct. 22, 2012).
     18
        Madison       Teachers, Inc. v. Walker, No. 2011CV3774,
unpublished order     (Dane Cnty. Cir. Ct. Oct. 22, 2012).
     19
         Madison      Teachers, Inc. v. Walker, No. 2012AP2067,
unpublished order     (Wis. Ct. App. Mar. 13, 2013).


                                          15
                                                                      No. 2012AP2067.ssa & awb


counties filed a petition with WERC asking "for a declaratory
ruling       .    .    .    concerning    the    subjects       of     bargaining       between
municipal employees and represented employees in light of the
Dane     County        Circuit      Court's     September       14,     2012    Final    Order
declaring              certain        statutory              provisions          of       MERA
unconstitutional."20

        ¶63      But the WERC Commissioners did not issue a clarifying
ruling and did not seek clarification from the circuit court
before enforcing the statute contrary to the explicit order of
the     declaratory          judgment.          Rather,       WERC     Commissioners       just
forged ahead enforcing a law that had been declared null and
void, knowing the circuit court's position and the confusion of
the municipalities.
        ¶64      These      circumstances       do    not     show     an    emergency    this

month        requiring        extraordinary          steps     by     this     court.       Any
emergency is of WERC's own making.
        ¶65      As a final and important point, the per curiam opinion
does     not,         and   cannot,    demonstrate           that     the    contempt     order
"constituted," as it claims, "an impermissible interference with
the appellate jurisdiction of this court."                           Per curiam op., ¶2.
        ¶66      On the contrary, the rights and obligations of all
persons          affected      by   the   September          14,     2012    circuit     court
declaratory judgment remain in effect after this per curiam,

        20
       Madison Teachers, Inc. v. Walker, Case No. 2013AP2405
(Wis. Ct. App.), Affidavit of Peter G. Davis, Chief Legal
Counsel for the Wisconsin Employment Relations Commission, at 7.




                                                16
                                                                           No. 2012AP2067.ssa & awb


regardless of vacating the contempt order.                                  Per curiam op., ¶2
("We do not rule on the stay of the September 2012 declaratory
judgment.").         Moreover,         a     cause        of     action      against          the   WERC
Commissioners for contempt still exists in the court of appeals.
        ¶67     The only threat to or impermissible interference with
the     appellate        jurisdiction           of    this        court       and    the       orderly

administration of justice has been WERC's continued enforcement
of the statutory provisions after the circuit court's September
14, 2012 declaratory judgment declared them null and void.
        ¶68     Nothing in the instant case compels this court to use
its    superintending        power      or      vacate          the    contempt      order.          The
substance and tenor of the per curiam opinion make it appear
that     the    majority,       rather       than     the        circuit       court,         has   been
pressured by "aggressive litigation in high-profile cases."                                         Per

curiam op., ¶21.
                                                 IV
        ¶69     We turn next to the per curiam's procedural errors.
        ¶70     First,    the    per    curiam        denied          the    respondent         unions
their        fundamental    opportunity              to     be    heard       in     a    proceeding
regarding their dispute. By making misleading statements about
the     respondent       unions'       status,            the    per       curiam        attempts     to
justify this denial.             It suggests that the respondent unions are
non-parties        that     needed         to    intervene            in     order       to    present
arguments regarding their contempt motion.21                                   Per curiam op.,
¶¶9, 14.


        21
       For clarification, there are two related cases at issue
here: case number 2012AP2067 and case number 2013AP2405.   Case
                                                    (continued)
                              17
                                                                 No. 2012AP2067.ssa & awb


     ¶71    The    respondent      unions      are     parties      to    the     contempt
proceedings and were entitled to be heard.                      No one disputes that
they are entitled to appear and argue their position——except the
per curiam.
     ¶72    In    fact,   when     the    WERC    Commissioners           appealed       the
finding    of    contempt,   the    Commissioners          listed        the   respondent

unions in the caption of the pleadings.                         The court of appeals
refers to them in its order as "respondent unions."                              In re the

Contempt    in     Madison       Teachers,       Inc.      v.     Walker,        Case    No.
2013AP2405,      unpublished      order    at     3    (Wis.      Ct.    App.     Nov.    4,
2013).22   Everyone acknowledges the respondent unions are parties
to the contempt proceeding——except the per curiam.
     ¶73    Yet,    at    oral     argument,          no   person        spoke     on    the
respondent unions' behalf.               The respondent unions' motion to

this court sought assurance that as a respondent in the contempt
proceeding they would be able to speak at oral argument.                                They
wanted to argue against the Commissioners' request to stay the
very contempt order that the respondent unions had sought and
obtained in case number 2013AP2405.                   They asked to intervene as
parties    to    case   number    2012AP2607      only      as    an     alternative      if



number 2012AP2607 is the case before us involving review of the
September 14, 2012 order.   Case number 2013AP2405 is an appeal
of the October 25, 2013 contempt order and is currently before
the court of appeals.
     22
       Though the court of appeals also refers to them as "non-
party unions" in other portions of its order, it clarifies that
it means "unions that were not among the original plaintiffs."
In re the Contempt in Madison Teachers, Inc. v. Walker, Case No.
2013AP2405, unpublished order at 2 (Wis. Ct. App. Nov. 4, 2013).

                                          18
                                                                  No. 2012AP2067.ssa & awb


their other motion was not granted.                        This court in an order
issued late Friday night November 8, 2013, denied both requests.
        ¶74     We    dissented       from     that      order,     fearing      that     the
respondent        unions      that   obtained      the    contempt       order    would    be
foreclosed        from   defending      it.        We    observed    that      "any    ruling
regarding the contempt proceedings must include their voices."23

        ¶75     What we feared has now come to fruition.                       Rather than
addressing the motion before it to stay the contempt order, the
per curiam soldiers on and actually vacates the contempt order——
exacerbating its denial of the respondent unions' opportunity to
be heard.
        ¶76     In apparent recognition of its disregard for the due
process rights of the respondent unions, the per curiam would
have us believe that all is well.                     It notes that earlier in the

day on Friday, November 8 (approximately six hours before an
order        issued   denying    them    the    opportunity         to   be    heard),    the
respondent unions filed briefs in this court.                            The per curiam
states,        "We    heard   their     positions       and   did    not      strike    their
briefs."        Per curiam op., ¶14.           However, not striking a brief is
not the same thing as hearing the respondent unions' position.
        ¶77     It's curious that the briefs would be "heard" when
hours later an order issued that denied the respondent unions an
opportunity to participate.               Why would members of the court read
the briefs?           They are not briefs of amicus curiae (friends of



        23
        Madison Teachers, Inc. v. Walker, No. 2012AP2067,
unpublished order (Wis. Sup. Ct. Nov. 8, 2013) (Abrahamson,
C.J., Bradley, J., and Crooks, J. dissenting).

                                              19
                                             No. 2012AP2067.ssa & awb


the court).   Nor does the per curiam view them as parties.     Does
this mean that henceforth, members of this court will read any
ol' brief that is filed in the office of the supreme court clerk
even though the person or group filing the brief has no status
or permission to file it or advance arguments?
      ¶78 Second, the per curiam further denied all parties the

right to be heard on the substance of the per curiam order.
What was before this court was a request to stay the contempt
order, not a request to vacate it.   In the four and a half hours
of oral argument and hundreds of pages of written briefs and
orders, no one asked for the relief fashioned by the per curiam.
Not one mention was made of the court's superintending power.
     ¶79   "Normally, a trial attorney should try his case and
not expect the court sua sponte to try it for him."         Sass v.

State, 63 Wis. 2d 92, 96, 216 N.W.2d 22 (1974).      If the court
does decide to address an issue not raised by the parties, it
should at least give them a chance to brief the issue.24         For
example, just this week, after determining that a related issue

     24
        See Day v. McDonough, 547 U.S. 198, 210 (2006) ("Of
course, before acting on its own initiative, a court must accord
the parties fair notice and an opportunity to present their
positions."); Bartus v. Dep't of Health & Social Servs., 176
Wis. 2d 1063, 1073, 501 N.W.2d 419 (1993) ("We therefore urge
the courts to exercise caution when determining an issue sua
sponte without the assistance of supplemental briefs and to ask
for briefs unless the matter is quite clear."); Pub. Serv.
Employees' Union v. Wisconsin Emp't Relations Bd., 246 Wis. 190,
198-99, 16 N.W.2d 823 (1944) ("A determination of this question
would involve the decision of a number of matters of
considerable importance. However, consideration of them is not
urged upon us in briefs of counsel nor argued in any way. Under
the well-established rule questions not argued will not be
considered or decided.").

                                20
                                                                  No. 2012AP2067.ssa & awb


needed to be decided to fully address the merits of a petition
before      us,    this    court    issued    an    order       requesting    additional
briefing      on    the     newly    fashioned       issue.          Attorney's      Title

Guaranty Fund, Inc. v. Town Bank, No. 2011AP2774, unpublished
order (Wis. Sup. Ct. Nov. 19, 2013).
       ¶80    When a court raises an issue sua sponte, "fairness

requires that the parties have the opportunity to develop the
relevant facts and to present legal arguments on the issue."
Hydrite Chem. Co. v. Aetna Cas. & Sur. Co., 220 Wis. 2d 26, 50,
582     N.W.2d       423     (Wis.     Ct.        App.     1998)     (Roggensack,         J.
dissenting).25        Apparently the Wisconsin Attorney General agrees.
In    another      case    the   Attorney    General        has    argued    that    it    is
inappropriate for an appellate court to "restructure[] [a] case
to    reach   and     decide     matters     that        were   never   raised      by    the

parties."          State v. Purtell, No. 2012AP1307-CR, Petition for
Review at 9 (Apr. 5, 2013).                   Here, the per curiam not only
refused to hear the arguments of one side before making its
decision, but it also refused to hear any argument from any one
on its newly fashioned theories and remedy.




       25
       See also Wood v. Milyard, ___ U.S. ___, 132 S. Ct. 1826,
1833-34 (2012) ("[A] federal court does not have carte blanche
to depart from the principle of party presentation basic to our
adversary system. . . . For good reason, appellate courts
ordinarily abstain from entertaining issues that have not been
raised and preserved in the court of first instance.       That
restraint is all the more appropriate when the appellate court
itself spots an issue the parties did not air below, and
therefore would not have anticipated in developing their
arguments on appeal.").


                                             21
                                                              No. 2012AP2067.ssa & awb


                                            V
      ¶81       The    order    today    essentially       serves     as        a    backdoor
ruling     on    a    substantive   matter       with   no   mention       of       the   far-
reaching effects of its order.                  The order creates a springboard
for future uncertainty and litigation.                   Three glaring questions
stand out: how will this affect (1) the unions that did not

follow WERC's rules, relying on the declaratory judgment, (2)
the unions that did follow WERC's rules, and (3) the contempt

proceeding pending at the court of appeals?
      ¶82       First: What effect does today's order have on unions26
that did not comply with WERC's emergency rules, relying on the
longstanding rule that government actors cannot enforce null and
void statutes?
      ¶83       What effect will the emergency rules have on unions'

certification status?             Will they automatically be recertified
with the declaratory judgment in place?
      ¶84       When asked at oral argument what effect a stay would
have on collective bargaining arrangements for any union that
did not file its petition for certification by August 30, 2013,
the   State's         counsel   failed    to     answer,     except        to       say   that




      26
       We currently know that the Kenosha Education Association
did not file a petition by August 30, 2013.   Madison Teachers,
Inc. v. Walker, Case No. 2013AP2405 (Wis. Ct. App.), Affidavit
of Timothy E. Hawks, exh. 2, at 1-3. An e-mail from Peter Davis
indicates that other bargaining units have inquired on this
exact topic. Id. at 1.


                                           22
                                                            No. 2012AP2067.ssa & awb


"ignorance     of    the    law   is   no    excuse."27   The     State's   written
filings similarly fail to answer this question.
       ¶85    Second: What effect does the court's order today have
on the certification elections for public school teacher unions
that complied with all WERC requirements but for whom elections
will not occur by December 1, 2013?28

       ¶86    Will   a   failure      to   hold   an   election    by    December   1
affect the 401 unions representing more than 60,000 teachers
that filed timely petitions by August 30, 2013, and for which
WERC    had   already       planned    elections?29       Does    WERC    have    the
authority to modify the statutory December 1 deadline?30
       ¶87    The    WERC    Commissioners'       filings    allege      that    WERC
cannot perform the mandated elections for the unions that filed




       27
       Madison Teachers, Inc. v. Walker, Case No. 2012AP2067
(Wis.   Sup.  Ct.),   oral  arg.   at   01:14:46  (available   at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=8148).
       28
       The Commissioners' statutory mandate requires that all
certification elections in a given year for general municipal
public school employees "shall occur no later than December 1."
Wis. Stat. § 111.70(4)(d)3.
       29
       See Madison Teachers, Inc. v. Walker, Case No. 2012AP2067
(Wis. Sup. Ct.), Affidavit of Peter G. Davis, Chief Legal
Counsel for the Wisconsin Employment Relations Commission, at 2.
       30
        The statutes authorize WERC only to create "proper
rules . . . to regulate the conduct of all elections . . . ."
Wis. Stat. § 111.09(1).


                                            23
                                                                   No. 2012AP2067.ssa & awb


by August 30 if procedures do not commence by November 5, 2013.31

That date has come and gone.
     ¶88      Pursuant       to   the      statutory     language       requiring        that
elections      "shall     occur       no    later      than     December        1,"32     must
elections     begin     by    December       1    or   end    by    December      1?      The
Commissioners' counsel's affidavit further states that "[i]f the

elections     are   not      held    as    scheduled      (or      at   least    completed
during    a   20    calendar        day    period      ending      December     1,      2013),
compliance with the statutory mandate is not possible."33                               There
are not 20 calendar days before December 1.34
     ¶89       If the affidavits are true, can elections take place
by the statutory date?              If not, will every collective bargaining




     31
       See Madison Teachers, Inc. v. Walker, Case No. 2013AP2405
(Wis. Ct. App.), Affidavit of Peter G. Davis, Chief Legal
Counsel for the Wisconsin Employment Relations Commission, at 6.
     32
       Wis. Stat. § 111.70(4)(d)3.
     33
       See Madison Teachers, Inc. v. Walker, Case No. 2012AP2067
(Wis. Sup. Ct.), Affidavit of Peter G. Davis, Chief Legal
Counsel for the Wisconsin Employment Relations Commission, at 4
(Oct. 25, 2013). "For the elections to take place in accordance
with the statutory directive, but not as scheduled, the
Commissioners must be able to resume administering and enforcing
the emergency rules and statute no later than November 5, 2013."
     34
        The elections must provide sufficient prior notice in
order to meet constitutional due process requirements.      See,
e.g., R.J. Reynolds Employees Ass'n v. N.L.R.B., 61 F. Supp. 280
(M.D.N.C. 1943) (ruling that four days was not sufficient notice
for a union election); Hall-Brooke Hosp., 267 N.L.R.B. 909 (Aug.
26,   1983)  (finding   that   same-day and   incomplete  notice
invalidated election results).


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                                                       No. 2012AP2067.ssa & awb


agent        requiring   recertification   be    automatically     recertified
this year?35

        ¶90     At   oral   argument,   WERC's    counsel   left    open   the
question of how the elections might or might not take place,
when elections could occur, or what disputes might result from a
rushed election process.36


        35
        WERC has previously suspended elections pursuant to a
court order pending an appeal.      See Rule Summary, EmR 1310
(noting "the Commissioners' . . . determination to suspend the
conduct of such elections     . . .    until the federal court
litigation was concluded").
        36
       The Commissioners' counsel provided scant detail about
how these elections could occur if their time constraints are
such as they state in their affidavits:

        We could tell you with certainty when we moved that if
        we got the order by November 5, that we'd be able to
        conduct elections by the first, but I'm afraid I
        cannot say with certainty what the Commission's
        decision will be if, say, the order came down on the
        15th.   But if you back up dates, an election could
        certainly commence by December 1st, if an order were
        issued, doing some math, by the 20th or the 21st. But
        the Commission has to meet in order to make that
        decision.

Madison Teachers, Inc. v. Walker, Case No. 2012AP2067 (Wis. Sup.
Ct.),    oral    arg.    at   1:26:48-1:27:47    (available    at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=8148). The Commissioners' counsel additionally failed to
indicate what procedures might be used regarding voter rolls and
notices:

        The Commission will have to make a decision based on
        the court's order as to what to do, but one option is
        to use what has already been in place before an
        injunction or a contempt was issued and rely on those.
        They may decide if it were consistent with this
        court's order to restart the process.         That's a
        decision they'll have to meet about and make a
        decision about based on what this court does.
                                                         (continued)
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     ¶91    Third: How does this order affect the appeal of the
contempt    ruling      currently       pending     at    the    court     of     appeals?
Because    the    per   curiam     opinion     is    issued      under     case     number
2012AP2067, it is unclear what effect it necessarily has on case
number     2013AP2405,          which     addresses        the      contempt         order
specifically.      Additional briefing remains pending at the court

of appeals.
     ¶92    The court's order today fails to grapple with these
unknown    practical      and     legal    implications.            The     per     curiam
reaches    its    result.         Satisfied,        the    opinion        foregoes    any
consideration of the collateral damage it has wrought.
     ¶93    For     all    of     the     reasons         set     forth     above,     we
respectfully dissent.




Id. at 01:13:42-01:14:03.

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