Wisconsin Educ. Ass'n Council v. Wisconsin State Elections Bd., WEAC-PA

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: CECI; BABLITCH
• Citation: 456 N.W.2d 839,156 Wis.2d 151
• Parties: , 61 Ed. Law Rep. 272 WISCONSIN EDUCATION ASSOCIATION COUNCIL andlaintiffs-Appellants-Petitioners, v. The WISCONSIN STATE ELECTIONS BOARD, Peter Dohr, Frederic Mohs, Don Moecker, Thomas Godar, Mark Sostarich, Robert Turner, John Niebler, Evan Zeppos, Kevin Kennedy, and Their Officers, Agents, Servants and Employees, Defendants-Respondents.
• Decision Date: 28 June 1990
• Docket Number: WEAC-PA,P,No. 89-0551

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456 N.W.2d 839 156 Wis.2d 151, 61 Ed. Law Rep. 272 WISCONSIN EDUCATION ASSOCIATION COUNCIL and WEAC-PAC,
Plaintiffs-Appellants-Petitioners,
v.
The WISCONSIN STATE ELECTIONS BOARD, Peter Dohr, Frederic
Mohs, Don Moecker, Thomas Godar, Mark Sostarich, Robert
Turner, John Niebler, Evan Zeppos, Kevin Kennedy, and Their
Officers, Agents, Servants and Employees, Defendants-Respondents. No. 89-0551. Supreme Court of Wisconsin. Argued May 29, 1990.
Decided June 28, 1990.

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[156 Wis.2d 153] Robert H. Friebert, argued, Charles D. Clausen, Peter K. Rofes and Friebert, Finerty & St. John, S.C., on the briefs, Milwaukee, for plaintiffs-appellants-petitioners.

Alan Lee, argued, Burneatta L. Bridge, Asst. Atty. Gen., Donald J. Hanaway, Atty. Gen., on the brief for defendants-respondents.

CECI, Justice.

This case is before the court on review of an unpublished opinion and order of the court of appeals, dated August 21, 1989, which dismissed as moot an appeal from a final order of the circuit court for Dane county, James C. Boll, Circuit Judge. The petitioners, Wisconsin Education Association Council (WEAC) and its political action committee (WEAC-PAC), commenced an action seeking a declaratory judgment that sec. 11.29(1), Stats., exempts from the disclosure requirements and contribution limitations of ch. 11, Stats., all expenses incurred by the association in communicating with its members about political matters, even if those expenses are incurred at the request or suggestion of a candidate or his or her campaign committee. In the alternative, the petitioners sought a declaration that if sec. 11.29(1) were administered and enforced to regulate communication among its members, the statute, as applied, would be unconstitutionally vague and would deprive its members of their rights to free speech and association guaranteed by the federal and state constitutions.

The circuit court concluded that the exemption contained in sec. 11.29(1), Stats., was limited by the plain language of the statute. The circuit court ruled, in essence, that disbursements made in connection with the [156 Wis.2d 154] political communications of a voluntary association may be subject to disclosure and limitation under ch. 11, Stats., when those communications are prompted by the request or suggestion of a candidate and are in the nature of a contribution to the candidate's campaign. The circuit court refused to address the petitioners'

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constitutional challenges to the statute as applied on the ground that those issues were not ripe for determination. On appeal, the court of appeals determined that the issues in this case had become moot and dismissed the appeal. Although we affirm the court of appeals' decision to dismiss this case, we do so on the ground that the circuit court did not abuse its discretion in concluding that the case was not ripe for determination.

The facts of this case follow. WEAC is a voluntary association of teachers, administrators, and other employees of educational systems throughout Wisconsin. WEAC-PAC is a committee of WEAC which engages in political activities to further the objectives of the association. ¹ In May of 1988, WEAC announced that it intended to hire interns from among its members to work to mobilize the membership in support of those candidates whom WEAC planned to endorse in the upcoming November elections. WEAC also announced that each intern would be paid a salary of $7,500 and would work full time during the summer and part time during the school year until the November elections.

WEAC eventually hired twenty interns to work in the program and created a job description for the interns. The job description stated, among other things, that the interns would be required to: 1) contact members concerning the placement of yard signs; 2) prepare materials and find volunteers for legislative drops; 3) [156 Wis.2d 155] organize a "get out and vote" effort among WEAC members for the primary and general elections; 4) organize and supervise direct mail projects to members of the association; 5) develop a list of the community activities in which members should participate to advocate the election of endorsed candidates; 6) inform WEAC members of the dates on which candidates would be appearing in their localities; 7) organize and supervise telephone banks to call members; and 8) perform other duties and activities as assigned.

After learning of the intern program, members of the State Elections Board (the Board) ² became concerned that expenses incurred by WEAC in connection with certain intern activities might constitute campaign contributions and cause WEAC to be in violation of the contribution limitations of $1,000 per senate race and $500 per assembly race set forth in secs. 11.26(2)(b) and (c), Stats. In particular, the Board members were of the opinion that certain activities, if undertaken by the interns at the request or suggestion of a candidate or his or her campaign committee, might constitute contributions to that candidate. As a result of its concerns, the Board met with the legislative director of WEAC on July 25, 1988, to discuss the operation of the intern program. By letter dated August 2, 1988, the Board informed WEAC that it planned to take no formal action with respect to the intern program because there was no evidence that WEAC had acted inconsistently with the campaign financing laws.

On September 7, 1988, WEAC commenced a circuit court action seeking a declaratory judgment that sec. 11.29(1), Stats., exempted from the reporting requirements[156 Wis.2d 156] and contribution limitations of ch. 11 any expense incurred by WEAC interns in communicating with WEAC members about political matters, even if those expenses were incurred as a result of contact with an endorsed candidate or his or her campaign committee. In the alternative, WEAC sought a declaration that if the Board administered and enforced sec. 11.29(1) to regulate political communication among WEAC's members, the statute, as applied, would violate its members' rights to free speech and association and would be unconstitutionally vague. The circuit court dismissed the complaint without prejudice, concluding that the action had been commenced prematurely because WEAC had failed to first obtain a formal opinion from

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the Board pursuant to sec. 5.05(6), Stats. ³

Thereafter, WEAC filed a request for a formal opinion with the Board. On October 18, 1988, the Board issued an opinion which stated that the operation of the exemption contained in sec. 11.29(1), Stats., is not dependent on whether a communication is initiated at the request or suggestion of a candidate, but rather on the nature of the communication to the membership. The opinion advised that the sec. 11.29(1) exemption is limited to communications which 1) emanate from the organization to its membership to the exclusion of all others; 2) concern the endorsements of candidates, positions on a referendum or an explanation of...