Future of Act 10 to be Decided in 2014

January 9, 2014

Since their passage, Governor Walker’s signature economic reforms have been the subject of continual legal challenges. It seems as not a day goes by without news of another law-suit working its way up the legal chain of one court or another. As we enter 2014, the most significant challenge to the constitutionality of the public employee union reforms has now worked its way to the Wisconsin Supreme Court.

MacIver Institute contributor, attorney Shannon Whitworth, runs down where the lawsuit stands and the issues the state’s Supreme Court will decide later this year:

On September 14, 2012, Dane County Judge Juan Colas declared that certain provisions of Governor Walker’s sweeping collective bargaining reforms under 2011 Wisconsin Acts 10 and Act 32 (collectively “Act 10”) were unconstitutional as to Madison Teachers, Inc., Madison’s public teachers’ union. The Judge’s decisions have created a wild ride in the aftermath, which will ultimately be concluded by the Wisconsin Supreme Court later this year.

In a very broad sense, Judge Colas made two important decisions that the Supreme Court will address:

  1. The new collective bargaining law creates two separate, but similarly situated classes of public employees, those in a “union,” and those who are not. And because the law offers potentially more benefits to those who are not collectively bargaining (or, more specifically those who choose not to have the union negotiate employment contracts on their behalf), Colas held that the law is unconstitutional because it violates the Equal Protection clause of the Constitution which compels similarly situated people be treated equally.
  2. The law which sought to end the City of Milwaukee’s practice of directly funding its own retirement system by deducting the money from city employees’ paychecks, violates the “Home Rule” statutes under Wisconsin law.

Judge Colas’ decision was appealed to the Court of Appeals, and that court punted the case to the Supreme Court. In the meantime, the state commissioners in charge of implementing Act 10 began doing so for those who were not involved in the lawsuit. A few unions cried foul and, while the case was on appeal, they went to Judge Colas to have the commissioners held in contempt of court. Judge Colas agreed, holding the commissioners in contempt and ordering remedial (not punitive) sanctions, i.e., forbidding the commissioners from implementing the reforms of Act 10.

The Attorney General then asked the Supreme Court to vacate the order of contempt because the case was still being decided before it. On November 21, 2013, the Supreme Court granted the State’s request, vacating the order for contempt. The majority of the Court ruled simply that when the lower court made its final decision, the type of injunctive relief that would have prevented the state’s commissioners from applying the law to anyone other than the plaintiffs in the lawsuit had been requested, but not granted, by Judge Colas.

In fact, the majority pointed out that in denying an injunction, Judge Colas himself reasoned that the commissioners’ enforcement of Act 10 against non-parties was not harming the Plaintiffs. Disagreeing with Judge Colas that his decision that the law was unconstitutional, in and of itself, prevented the commissioners from implementing Act 10 against non-parties, the Supreme Court held Colas’ subsequent action was an improper expansion of his Final Order while the case was on appeal.

Everyone in the lawsuit agrees (Colas included) that public employees do not have a constitutional right to collectively bargain, despite union attempts to cast collective bargaining as a basic human right. Legally, what the collective bargaining case hinges on is: Does the law only affect the statutory privilege to collectively bargain, or does it punish a public employee for choosing to be in a union?

The answer to that question is key, because it will determine the level of legal scrutiny under which the law will be reviewed. If the Supreme Court holds that the law impedes on constitutionally protected rights of free speech and association, the strictest level of scrutiny will be applied in attempting to justify its existence, against which all parties concede the law will fail. If it is held not to impede on constitutionally protected rights, a lower form of scrutiny will be used, against which all parties concede the law will survive.

The “Home Rule” issue hinges on whether a statewide law which in fact only impacts Milwaukee is a valid exercise of the state legislature’s authority. Wisconsin breaks down the various types of municipalities in the state by “classes.” Based on its current population, the City of Milwaukee is currently in a class all its own. The Wisconsin Constitution provides a degree of self-governance to municipalities without interference from the state legislature for matters which are only of “local concern.” As a part of Act 10, a law was created prohibiting Class I cities (Milwaukee) from paying its employees’ share of contributions directly into its own retirement system, reasoning that the “home rule” did not apply because the retirement benefits of public employees are an issue of statewide concern.

The Court’s past cases have not provided a clear path forward on the issue and it will be called upon to reconcile its’ past holdings in order to resolve the case at hand. As the Court of Appeals succinctly put it: “[I]t seems that the dispute here arises because of a lack of clarity in prior supreme court decisions as to whether statewide uniformity alone is sufficient to satisfy the Home Rule Amendment.”

So, the Supreme Court has a fundamental and very important question to answer. Has the limitation of a statutory privilege (collective bargaining) created the infringement of a constitutional right? A conservative court will have difficulty upholding a lower court ruling which eliminates the incentives for an individual not to join a union. If the employee is not allowed to negotiate a better deal outside of collective bargaining, and is forced to pay for the activities of the union whether she is a member or not, then as a practical matter that employee is a member of the union and the state is complicit in making membership compulsory. Indeed, what of the free speech and associational rights of the employee who does not want to be in the union?

With the Supreme Court expected to render it’s decision in the next few months, hopefully the perpetual legal challenges to Acts 10 and 32 will finally come to a close and the people of Wisconsin will be able to put this frustrating uncertainty behind them.