Appeals court: Not enough evidence to issue writ of mandamus in collective bargaining case

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A writ of mandamus forcing Wisconsin’s Brown County and the city of Green Bay to maintain health insurance plans and benefits for police officers, firefighters and sheriff’s employees should never have been issued, according to a Wisconsin appellate court decision in Green Bay Professional Police Association et al. v. City of Green Bay and Brown County, 2013 AP 269.

In a three-judge panel ruling issued Oct. 15, the consequences of a 2011 state law prohibiting collective bargaining with public safety employees on health insurance plans and coverage continue to ripple throughout the court system. Here, the appellate court ruled that there was not enough evidence for the circuit court to issue a writ of mandamus.

“A writ of mandamus is an extraordinary writ issued … to compel compliance with a plain legal duty,” said the court. “The association failed to establish those elements necessary to obtain such extraordinary relief.”

In 2010, both Green Bay and Brown County concluded protracted contract negotiations with local public safety personnel. The Green Bay Common Council approved the 2009-2011 bargaining agreement after negotiations concluded, and the Brown County Board of Supervisors later passed a motion approving a similar 2010-2011 agreement reached with Brown county public safety personnel.

Language in both the Green Bay and Brown County resolutions stated that the labor agreements could only be changed or amended by “a subsequent written agreement between and executed by the municipality and the bargaining unit.”

Both agreements were set to expire Dec. 31, 2011.

In June 2011, the Wisconsin Legislature enacted Act 32, Section 111.70(4)(mc)6, which prohibited public safety personnel from collectively bargaining with any city or government entity regarding “the design and selection of health care coverage plans ….”

When the police association tried to negotiate a new contract after its agreement expired at the end of 2011, negotiators for the city refused. Citing the then-newly passed Wis. Stat. 111.70(4)(mc)6, Green Bay took the position that it could change the health insurance plans, modify deductibles, adjust benefits and take other steps affecting health insurance without the approval of the association.

In fact, Green Bay negotiators insisted that the city was prohibited from even bargaining about “the financial effect of the city’s health insurance design changes would have on the Police Association’s members,” according to counsel’s brief for Green Bay. Brown County took a similar position against the Sheriff’s employee association.

The police association filed a motion for declaratory judgment in September 2011, in part asserting that the city of Green Bay had failed to follow its own resolutions – specifically that the labor agreement expiring Dec. 31, 2011, could be “altered or amended only by a subsequent written agreement between and executed by the municipality and the bargaining unit.”

The case went to summary judgment hearing in December 2012, where Green Bay and Brown County prevailed. The circuit court ordered that with the exception of premiums, 111.70(4) clearly barred collective bargaining regarding public safety employees on health plan coverage issues.

After failing to get a favorable declaratory judgment, the police association moved the court to issue a writ of mandamus. Such a writ should only be used to compel a clear and obvious action, according to the appellate court, with a strong likelihood of imminent damages, and only used when there no other legal avenues are available.

The mandamus action was necessary in part because Green Bay and Brown County were planning to take immediate steps to modify member insurance plans and benefits as soon as the agreements expired, according to the GBPPA and the Brown County Sheriff’s employees brief, which would increase costs to their memberships.

After the hearing, a writ of mandamus was issued by the court compelling Green Bay and Brown County to maintain their insurance policies and benefits affecting public safety employees unchanged until a new agreement was reached.

Brown County Judge Marc A. Hammer reaffirmed that he still believed the 2011 Wisc. Stat. 111.70(4)mc)6 prohibited municipalities from collectively bargaining with any public safety employee bargaining unit about insurance plans and coverage. However, it was a matter of “implementation”, he continued, which had to allow for some measure of reasonable transition.

Green Bay and Brown County appealed, alleging that the lower court failed to apply the necessary criteria to approve a mandamus action, and further saying that such a writ should not have been possible unless brought as a separate action.

A writ of mandamus should only issue, said the appellate court, if the associations could show 1) that there had been a clear or specific legal right free from substantial doubt, 2) that the duty the association sought to enforce was “positive and plain”, 3) that substantial damage would result if this duty was not performed, and 4) there was no other adequate remedy at law.

As a matter of law, said the appellate court, the associations had failed to provide sufficient proof that substantial damages would result to association members, and also failed to show that there was no other adequate remedy at law.

Both associations claimed that the city of Green Bay and Brown County both had a “plain and positive legal duty” to honor their own resolutions.

The association had cited State ex rel. Milwaukee County Personnel Review Board v. Clarke for the proposition that mandamus relief was necessary when a municipality fails to perform its duties. The appellate court noted that although Milwaukee County Sheriff David Clarke suggested that mandamus may be available when a city refuses to follow its own laws, other options must still be considered if available.

In this case, the court said that the associations could have a filed a motion to reconsider Hammer’s declaratory judgment order, or asked the court to stay enforcement pending appeal.

Furthermore, the court could not find that enough proof had shown substantial damage would result if the status quo for insurance was not upheld.

The associations “do not allege that the municipalities’ actions will cause any financial damage,” the appellate court said in its opinion, “let alone substantial damage.”

The associations had claimed if Green Bay and Brown County ignored their own resolutions, it would compromise their ability to have reliable interactions in the future, severely hamper future efforts to collective bargain, and create further “negative and uncertain complications” in the future.

Such damages were too vague, said the appellate court, and by law insufficient to support a writ of mandamus, leading the appellate court to reverse the lower court decision.