In Wisconsin, as in all states, one doesn’t have to make an oral statement to be guilty of actionable misrepresentation. A person buys a car after asking: “has this car ever been in a wreck before?” The seller merely shakes her head “no” while knowing she just had $5,000 worth of front end repairs. The deal closes. Presumably all of us would agree this is egregious and can be punished.
But what about this: The earlier deal doesn’t close and the next prospective buyer says: “What a clean looking car! Tell me what you’ve done to keep this car looking so new?” Same seller’s response is: “I wash it weekly, park it in remote sections of shopping malls, and always keep it in my garage at night.” Does this seem to anyone like a tougher call on whether a lie has occurred?
Final situation: A prospective buyer and his wife are walking around the car with the same seller, and the wife says to her husband in the seller’s presence: “This car is in mint condition. I like it better than the one we saw yesterday that had to have the front end repaired.” The seller smiles and looks off at her kids playing in the yard. Did the seller have a duty to come clean?
Wisconsin Civil Jury Instruction 2402 provides some guidance on how courts view the “duty to speak” issue in civil lawsuits:
“Representations of fact do not have to be in writing or by word of mouth, but may be by acts or conduct . . ., or even by silence if there is a duty to speak. A duty to speak may arise when information is asked for; or where the circumstances would call for a response in order that the parties may be on equal footing; or where there is a relationship of trust or confidence between the parties.”
New hypothetical: During gubernatorial debates, or town hall meetings, or meetings with major papers’ editorial boards, the question is directly posed to a candidate for governor: “Tell us the key strategies you intend to use to bring the state budget under control for the taxpayers of Wisconsin?” The candidate responds: “We’ll strip pork, stop shifting reserves from what are supposed to be dedicated purposes to other purposes, account for the budget like a business would, using GAAP principles, and finally, because Wisconsin has problems with budgets at our local units of government as well, I intend to do what I can to limit salary increases for public workers, and have them pay something out of their own pockets for benefits and pensions just like private sector employees.” What the candidate does not say, although it is true, is: “I also intend to end the collective bargaining rights for state, municipal and county employees, and the state’s teachers.” Has the candidate lied to the public? Has he or she violated a duty to disclose to the voters a material fact under circumstances that called for its disclosure?
A material fact in misrepresentation law is one that can reasonably be expected to induce some action on the part of the listener to his or her detriment. Should a gubernatorial candidate with an intention to end a decades’ long practice of collective bargaining of public workers expect that his or her failure to disclose that intention would be likely to induce some action at the polls come election time? Do the circumstances in a democracy call for a candidate to answer questions honestly and fully about major positions while on the hustings? Should candidates for public office, before they are first elected, be considered in a “relationship of trust or confidence” vis-à-vis the electorate?
Yesterday I mentioned the Madison public school teacher at my parish who said last Sunday she had voted for Governor Walker because as a devout Catholic she felt she needed to take a stand on abortion. She told me she felt sick about her vote after learning about the Budget Repair Bill because she felt she and other teachers and public employees had a right to collective bargaining.
Governor Walker won the election by 124,638 votes over Mayor Barrett. A shift in about 62,400 votes, or 3% of the total votes cast, would have changed the election’s outcome, all other things being equal. Had Governor Walker campaigned on an intention to end public workers’ collective bargaining rights, would it really have caused the teacher at my church to have voted for Mayor Barrett? Are there thousands upon thousands of others like her who might have voted differently had he campaigned on ending collective bargaining? Perhaps if Governor Walker had been open about his plans to kill collective bargaining, he would have energized even more conservative or independent voters to come to the polls to vote for him. There is no way to know whether the results would have been different, and obviously active or passive misrepresentations on the campaign trail are something we would never want to see courts sticking their noses into. (Unless, I suppose the misrepresentation relates to residency or some other legal qualification for office. Insert “Mrs. Emmanuel’s wedding dress” or the “Birthers” here.)
Hopefully, you are all now thinking: “Okay, but all of the above (somewhat rambling) discussion ‘assumes facts not in evidence’.” Did Scott Walker have a well-formed plan to end collective bargaining during times when he was asked on the campaign trail about his intentions for balancing the budget. If he did, did he have a duty to disclose it to the voters in advance of the election, so they could make as informed a choice as possible for their futures as Wisconsin citizens? We have all become so jaded about politics and politicians, that for most of us the notion that voters occupy some special “relationship of trust and confidence” with candidates seems almost laughably naive. But is that the way things ought to work? Governor Walker has talked about trying to run state government more like businesses are run in terms of efficiency and economy. Much of that may be a good idea. Let’s go with the “run like a business” idea. Imagine, instead of us being Wisconsin voters, that we were a small group of shareholders of a small but very profitable company in which we had our retirement nest-eggs invested. Imagine we had to vote on which of two candidates we wanted to serve as the CEO of the company, and protect our nest-egg. If both candidates for CEO were asked to put together a comprehensive plan for the future growth of the company, wouldn’t we expect that every major aspect of a candidate’s plan would be fully spelled out. What if one CEO candidate had an intention to fire many of the most experienced employees and replace them with cheap but inexperienced laborers in order to save substantial labor costs? Would that be something as shareholders we would feel we had an absolute right to know about in making our decision on which person to hire? Should Wisconsin schools and universities and parks and rivers and innovation centers be seen as nest-eggs?
Recall what Mitch Daniels, the fast rising star of the cost-cutting Republican governors, said in a very recent letter about his decision to ask the Indiana legislature to drop right to work legislation for now:
“Into this a few of my allies chose to toss Right to Work (RTW). I suggested studying it for a year and developing the issue for next year. No one had campaigned on it; it was a big issue that hit the public cold.”
I invite anyone to point out to me why the collective bargaining part of the BRB should not have been considered as, in Governor Daniel’s words, “having hit Wisconsin citizens cold.” When I hear a Republican leader on the state or national level sitting across from television pundits claiming that Governor Walker is “just doing what he campaigned to do,” I simply sigh and think “gee, there’s another liar.” His campaign website didn’t talk about collective bargaining. No editors have stood up and said “oh, yes, he mentioned it to us in our endorsement process.” The videotapes of the debates make no mention of it.
Collective bargaining has been a right of public employees for over 50 years. No policy should be exempt from change, but one that has been in place for so long builds up a reliance interest on the part of both sides to the public worker collective bargaining process. For all we know, there may have been benefit, pension and work rule concessions made in current or past contracts by public unions in reliance that they would continue to be able to collectively bargain in the future to restore some of the concessions. The local governments and school boards don’t even want this process eliminated.
Let’s go back to the assumed “fact not in evidence.” Did Governor Walker form a plan for stripping public unions of collective bargaining prior to his election? If so, was he asked direct questions on the campaign trail that cried out for him to reveal that? Did he keep such a plan under his hat to stay below the radar on that issue before November 2? These are all questions that the citizens of Wisconsin have a right to know going forward. Absent recall, we all have to simply accept the last election. But that doesn’t get the Governor off the hook on clarifying this issue. The citizens have a right to know about the character of their leaders. In terms of the overall interests of democracy, I would find his being dishonest on his intentions about such a major state issue more distasteful than President Clinton being dishonest on the Lewinsky affair.
Hopefully the state media will follow up on this issue. From what I have seen to date, Governor Walker is not shying away from press conferences, and facing tough questions at press conferences. That's a good thing.