On Wednesday, a Dane County judge declared that certain parts of Act 10 in Wisconsin are unconstitutional. Moreover, the judge dismissed a motion to end the case that challenges the law enacted during Gov. Scott Walker’s time in office, which greatly limited the influence of unions. This law also caused widespread protests and significantly altered the political landscape of Wisconsin for many years to come.
In November of 2023, a lawsuit was filed by several unions representing public employees who cited various issues within the workplace, including low pay, staffing shortages, and poor working conditions. The situation was deemed dire, prompting action. This lawsuit was considered by Dane County Circuit Judge Jacob Frost in May, who received a motion from the state Legislature to dismiss the case. A ruling is expected to be made in the near future.
It seems that Judge Frost, who was chosen for the Dane County Circuit Court by Democratic Governor Tony Evers in 2020, had signed a petition calling for the recall of the former Republican governor due to the law. The judge’s signature is visible on the petition, alongside the address where he resided in 2011, before he became a judge, as indicated by property records.
It is currently unclear what the consequences will be of Frost’s directive.
According to the lawsuit, the 2011 law is in violation of the equal protection guarantees enshrined in the Wisconsin Constitution. This is primarily due to the fact that the law creates two distinct categories of public employees – “general” and “public safety” employees. The latter group is exempt from the collective bargaining limitations that are imposed on the former group.
In his ruling, Frost explained the simple premise of rational basis review – can a law’s differing treatment of different groups be justified in a way that is logical and supports a public policy? If not, the different treatment is considered irrational and violates the right to equal protection of the laws. Frost pointed out that no explanation was provided to the Court that reasonably showed why Capitol Police, UW Police, and conservation wardens – who have the same authority and perform the same work as municipal police, fire and State Troopers – are not considered public safety employees.
The unjust treatment of Capitol Police, UW Police, and conservation wardens with no reasonable basis for differentiation is a clear violation of their right to equal protection under the law. As a result, I declare the provisions of Act 10 that pertain to modifications of collective bargaining to be unconstitutional and null.
The Abbotsford Education Association, AFSCME Locals 47 and 1215, the Beaver Dam Education Association, Ben Gruber – conservation warden and president of AFSCME Local 1215, Matthew Ziebarth – a teacher from Beaver Dam, SEIU Wisconsin, Wayne Rasmussen – an employee of Racine Unified School District, the Teaching Assistants’ Association Local 3220, and the International Brotherhood of Teamsters Local 695 are some of the plaintiffs in the case.
Requests for comment from the state Department of Justice and the Legislature’s attorneys have not been answered yet. The outcome of the case in Dane County court is expected to be appealed and may eventually go to the state Supreme Court.
In a statement, Jacob Karabell, who represents the unions in the challenge, confirmed that the attorneys for the plaintiffs concur with the unconstitutionality of the collective bargaining provisions of Act 10. He added that they are eager to proceed with the next steps in the case.
The release of the order and its timing were strongly criticized by Republicans.
In a prepared statement, state Senate Majority Leader Devin LeMahieu, R-Oostburg, criticized the recent court actions against Act 10, stating that it has been deemed legal and constitutional by multiple state and federal courts for almost 15 years. He accused the Democrats of relying on activist judges to make decisions on a holiday weekend when no one is paying attention. LeMahieu warned that if this decision is upheld, it will have a detrimental impact on the hard-working families of Wisconsin, costing them millions of dollars.
The negotiation rights of public-sector unions were significantly limited by Act 10. The law restricted their bargaining power solely to salary increases, with inflation as the maximum cap. Moreover, unions were mandated to conduct yearly elections to retain their authority to negotiate for salary raises. These elections necessitated a majority of all eligible union members, not just those who participated in voting.
According to a nonpartisan analysis by the Legislative Fiscal Bureau, public employees who earned an annual salary of $50,000 experienced a reduction of approximately 8.5% in their take-home pay due to increased benefit costs.
Republicans passed a right-to-work law that curtailed the authority of private-sector unions, four years after the enactment of Act 10.
According to a recent study conducted by the Wisconsin Policy Forum in 2022, Wisconsin has witnessed the largest decline in the percentage of unionized workforce since 2000, compared to all other states. This is a noteworthy event in the state that gave birth to AFSCME and was the first to authorize public-sector unions to engage in contract negotiations in 1959.
After the law was passed, it triggered a series of recall elections. Governor Walker, who was responsible for the legislation, made history by becoming the first governor in the United States to successfully defend against a recall challenge. The former Lieutenant Governor, Rebecca Kleefisch, also made history by being the first to face a recall challenge as well as the first to survive one.
In 2012, recalls were initiated against thirteen state senators due to Act 10, with ten Republicans and three Democrats being targeted. Although most incumbents were successful in retaining their positions, the Democrats managed to unseat three Republicans. This gave them temporary control of the Senate during the summer of 2012, but the victory was short-lived as it happened when the Legislature was out of session. The Republicans regained their majority in the fall of the same year.
Act 10 thrust Walker into the national spotlight, elevating him as a prominent Republican figure and providing him with an opportunity to run for the presidency. He emerged as a leading candidate among conservatives, dominating polls for several weeks. However, he eventually withdrew from the race after Donald Trump’s popularity surged among Republicans.
Peter Barca, a former U.S. Representative, is currently running against Republican Bryan Steil in Wisconsin’s 1st Congressional District. Barca served as the state Assembly minority leader from 2011 to 2017, during the time Act 10 was passed. In an attempt to prevent its passage, he led over 60 hours of continuous floor debate, which unfortunately did not succeed.
According to the Milwaukee Journal Sentinel, Barca expressed his long-standing belief that Act 10 was a divisive, unconstitutional, and unfair policy towards labor. As the leader of the fight against the bill, Barca emphasized the importance of open, responsible, and accessible government in bringing people together. He also stressed the pivotal role of strong unions in making Wisconsin a more robust state.
Months after liberal state Supreme Court Justice Janet Protasiewicz was sworn in, flipping the high court’s majority for the first time in years, a lawsuit was filed challenging the law. It’s worth noting that previous legal challenges to the law have failed. The Democratic Party of Wisconsin and unions at state and national levels contributed over $560,000 to Protasiewicz’s campaign, not including individual contributions made by members.
In March, Protasiewicz expressed her willingness to recuse herself from cases related to Act 10. She cited her opposition to the law and her participation in protests against it back in 2011. Additionally, she signed a Walker recall petition, which further solidified her stance against the law.
Protasiewicz said he would need to consider recusing himself due to his participation in the march and signing of the recall petition. He acknowledged the possibility but stated uncertainty about his decision.
In response to the case, Walker took to social media and highlighted the ideological shift in the Supreme Court.
In a tweet, Walker questioned the need to elect a Governor and lawmakers if activist judges can impose their own will.
The lawsuit’s dismissal was advocated by lawyers who emphasized that Act 10 has successfully withstood previous challenges. The Republican-led Legislature contended that the case should be dismissed based on the failures of previous challenges.
Republicans have praised the law for its cost-saving measures and have emphasized that it has given elected officials and the public greater control over their government. Meanwhile, Democrats have criticized the law, claiming that it has had a negative impact on schools and has greatly decreased employee morale. They argue that the law has stripped teachers, correctional officers, and other professionals of their ability to participate in decisions regarding their working conditions.
Upon concluding his order, Frost directed both parties to submit a letter or memorandum to the Court regarding whether the Court should issue a judgment on the pleadings in light of his decision or take any other action to bring the action to a final judgment. Additionally, he requested that the Plaintiffs specify which sections of Act 10 must be severed and struck in accordance with his ruling and that the Defendants respond to this issue accordingly.
You can get in touch with Jessie Opoien via email at [email protected]. If you need to contact Laura Schulte, you can reach her at [email protected].
The content was first published on Milwaukee Journal Sentinel, reporting that a Dane County judge has invalidated certain provisions of Act 10 in Wisconsin that restricted public unions.