Richard Moore

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Order by Sept. 15 and receive Richard Moore's new book, The New Bossism, for just $15.95 (plus $5 shipping and handling), 20 percent off the retail price of $19.95.

The new bossism is a powerful alliance of entrenched government bureaucracies, special interests,  and political managers. At the heart of this coalition is a dangerous combination of money and secretive legal authority, in which lobbyists and state agencies work together to write their own laws, subvert the constitution, and circumvent elected officials. Along the way they have worked to establish their own extralegal state government, posing a grave threat to our democratic institutions and standard of living. In The New Bossism, Richard Moore takes you behind the scenes and lets you see the new bosses at work in every level of state government, from the highest court to huge agencies such as the Department of Transportation and the DNR to relatively obscure ones such as the Office of the Commissioner of Insurance.

It's a chilling journey, but one every citizen should make.

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This column first appeared in The Lakeland Times.

The startling decision by the Wisconsin Supreme Court allowing government employees to effectively seal their email communications from the public is a major setback for open government and accountability, and serves as a powerful illustration of why it's time to end the election of judges.

It also exposes chief justice Shirley Abrahamson for what she is - a greasy political hack, bought and paid for by big unions and Democratic Party special interests. In sum, the chief of the state's political class was paying back her dear special-interest friends, and we are all going to pay the price for her generosity.

In its 5-2 ruling, the majority concluded that personal emails written on work time on public computers do not have to be released. Three justices, including Ms. Abrahamson, decided such emails weren't public records at all.

What the court has done is sabotage the public's ability to peek inside the daily workings of their government.

For starters, when we now request emails, and records' custodians tell us they are withholding some or all of them because they are personal, how do we know the custodian is telling the truth?

Perhaps more often, the custodian will simply be baffled because so many emails will live on the edge of interpretation. If school teachers, to use an example, are campaigning for local school board candidates on school time and on school computers, is that their personal business or is it related to their jobs?

Given the court's determination, a custodian might well decide that a person's political activity is purely personal.

Or, hypothetically, would romantic emails from a married senator and candidate for governor, written to a person who is not the senator's spouse, be personal or public?

Certainly one's romantic life is a private thing, at least usually. But doesn't the public have a right to know if a candidate is having an affair? Doesn't this go to the question of character?

One only has to look at the recent South Carolina gubernatorial campaign to realize this is not farfetched.

There, GOP nominee and state Rep. Nikki Haley walloped her competition in the Republican primary, but right before election day she was accused of cheating on her husband - not once, but twice by two different men who stepped forward to say they had slept with her.

Haley cried foul, the men could not prove their allegations, and she went on to win in a cakewalk.

But here's a problem. One accuser said Haley's emails would prove the dalliance. The news media immediately issued open records requests.

Unfortunately for them, Haley declined because in South Carolina legislators have conveniently exempted their communications from that state's open records laws.

So in South Carolina, they will never know for sure what was in those emails. Wisconsin's situation is not exactly analogous because the Legislature is not exempt from the open records law, but the court's decision has actually put the public here in an even worse position.

Now, in a similar situation, if a legislator is slapped with an open records request about a purported affair, he or she can simply decide that romantic emails are personal and exempt.

Nobody can stop them. You can still go to court to contest decisions, but that's a costly fight most people can't afford. One can see how easily and broadly this blanket exemption can - and will - be used.

What about pornography? In 2007 Oneida County suspended a zoning department employee for five days after finding emails containing pictures of adult nudity on his computer.

The employee had forwarded non-work-related emails to a group of individuals using his county computer; he also received non-work-related emails from the group, which included a Minocqua police officer.

All this took place after this newspaper issued an open records request, and the public was able, because of the strong fabric of the law, to see what certain employees were up to on work time.

Now, even if the county were to find such emails, officials would not have to disclose them if they chose to label them as personal. We'd never know the employee did anything wrong, and perhaps we wouldn't know if he had been disciplined, or how.

As it was, the public could discover not only misconduct but how officials dealt with that misconduct - which is just as important. Without the threat of disclosure, officials might not exact any discipline at all.

Even for innocuous emails, the public should be able to review records to see how much personal time public employees are spending. Statistical summaries of such time are not adequate because they do not give context. If a group of public employees is spending hours passing along jokes, or scheduling softball games, or discussing where to eat dinner, we have a right to know it.

Practically speaking, say goodbye to that reasoning. In South Carolina, legislators exempted themselves from the open records law; in Wisconsin the Supreme Court has exempted the entire state government from the law.

The bottom line is, the ruling enables the government to block the public from seeing whether public employees are engaged in misconduct, from seeing what that misconduct is and how it is handled, and it enables the government to apply the label of 'personal' to many acts related to serious public business.

All of which brings us to the architect of the decision, chief justice Shirley Abrahamson, who wrote the ridiculous lead opinion concluding that personal emails aren't even public records.

For Ms. Abrahamson, ostensibly, it's all about content, not where or when the emails were written.

The state's chief special-interest puppet said she looked at other states to see what they had done, and all of them found personal emails to be exempt.

"Several other states have already addressed this issue," she wrote. "... We know of no state that has reached the conclusion that the contents of such personal e-mails should be released to members of the public."

The key word in that paragraph is 'several.' That's right, a handful of states have done so - five by my count - and, in some, lawmakers are crafting laws to correct the bad decisions.

In most states, though, the issue of personal emails and open records is not settled. In most states, in fact, open records laws in general are an unsettled matter.

For many years, by contrast, our state has been a national leader in government accountability. Meaning, Ms. Abrahamson would have done better just to stay home and look at the laws here.

Ah yes, in her decision, she says she did get around to that. In doing so, she interpreted the Legislature's statement of intent in the public records law, and concluded that lawmakers believed "public records" must contain content related to the "affairs of government."

In her blistering dissent, in which she macerated the chief justice's baloney like a puppy shreds a roll of toilet paper, justice Patience Roggensack called Ms. Abrahamson out.

Interpretation, she pointed out, begins with the statutory language, and, if that language is clear and unambiguous, there is no need to consult "extrinsic sources such as legislative history, to discern the meaning of the statute."

And the statutory definition of a public record, Ms. Roggensack continued, was clear: "'Record' means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority."

How clearer can it be? "Any material" makes no exception for personal material.

In addition, Ms. Roggensack chided Ms. Abrahamson for asserting as fact things she could not possibly know. For example, Ms. Abrahamson said the emails in the case included "such messages as an e-mail from a teacher to her spouse about child care responsibilities and an e-mail from a friend to a teacher regarding social plans."

But, as Ms. Roggensack stated, the chief justice could not possibly know that because none of the justices had ever seen any of the emails in question.

Indeed, when you read Ms. Abrahamson's lead opinion, it is part fairy tale and part legal fiction, as if the chief justice had written a bad novel that serious publishers had rejected and she was just trying to use it somewhere, anywhere.

It's hard to believe she could produce such a juvenile rendering after serving on the Supreme Court since 1976.

Indeed, the sophomoric nature of Ms. Abrahamson's opinion tempts us to believe it was all purposely fabricated, a hat trick for her ally, the Wisconsin Education Association Council.

Politics does make sense. WEAC routinely endorses Ms. Abrahamson in her campaigns. Here's what a WEAC brochure said about her: "... she has consistently decided cases in a manner that protects employee rights and fosters increased educational opportunity."

'Protects employee rights' is code for protecting their 'right' to shield their conduct at work from the public.

This paper, as it turns out, has an illuminating history with Ms. Abrahamson.

In 2009, the state Supreme Court agreed with lower courts that The Lakeland Times and the Milwaukee Journal Sentinel were entitled to certain personnel records after the Wisconsin State Employees Union tried to negotiate an exemption to the open records law that barred releasing the names of union employees to the press.

It was absurd.

The Times had asked for the names and pay of certain DNR employees, and who would conclude that such basic information about public employees shouldn't be accessible?

 Well, one person did. The Supreme Court vote was 6-1 and you can guess whom the lone dissenter was, the lone justice for hiding the names of taxpayer-paid union employees from the public: Shirley Abrahamson.

Of course, Ms. Abrahamson's anti-open government, pro-big government rulings are only symptomatic of what has happened to the entire Supreme Court.

We know the governor's mansion was sold off to special interests a long time ago. We know the state Legislature was sold off to special interests a long time ago. One would have hoped that some vestige of an independent nonpartisan judicial system would remain.

But that's not the case; special interests have bought the courts, too. Judicial elections are awash in their money.

For example, as the Wisconsin Democracy Campaign reported in 2009, the Greater Wisconsin Committee spent an estimated $465,000 to help elect Ms. Abrahamson. The chief justice herself spent $1.2 million on her campaign.

And one of the biggest supporters of Greater Wisconsin is WEAC, which, according to WDC, gave the group nearly $250,000 prior to the 2008 election.

Ms. Abrahamson is not alone; all of the races have become partisan exercises that compromise judicial integrity.

This decision underscores what the recent ugly ethics brawl among the justices concerning justice Michael Gableman has brought to light: the Supreme Court is all about partisan politics, pal, and serious partisan politics at that.

It's time to stop electing judges and adopt some type of merit selection. I am not wedded to any particular system, so long as it helps preserve judicial integrity. It's true one can never remove special interests from the process of judicial selection, but at least we can curb it.

As for open records in the aftermath of this wreckage, attorney general J.B. Van Hollen issued a memo to clarify the ruling and he did a service in doing so.

The attorney general pointed out that the public can still request statistical records showing how many emails are personal and how many are private, and he said the ruling should not deter people from making open records requests.

That's noble, but the court decision will do just that. As more officials claim their records to be personal, and those claims force more court fights, a frustrated public will inevitably file fewer requests.

This ruling demands a legislative remedy. It demands that the Legislature reverse by statute what the justices did. It's not likely, given the mindset of such senators as Mark Miller, who at one point tried to argue that constituent correspondence was off limits, despite written legislative policy to the contrary.

The anti-open records crowd is in control of the Legislature, too, and that's something else to keep in mind come election time.

In this pamphlet, A Matter of Constitutional Integrity, Richard Moore investigates one of the more mysterious – and wealthiest – state bureaucracies, and exposes one of Wisconsin’s previously best-kept secrets. Click Web Store for details. (Note: This is an electronic purchase. Pamphlet will be emailed as readable and printable PDF file. Purchasers must have Adobe Acrobat Reader.)