Act 10 Once Again Upheld by Court

The U.S. District Court for the Western District of Wisconsin has rejected the last remaining federal court challenge to 2011 Wisconsin Act 10, also known as the Budget Repair Bill. The court ruled that the plaintiffs in the case, Laborers Local 236, et al., had failed to prove that (1) Act 10’s restrictions on collective bargaining improperly burdens municipal employees’ right to associate, assemble and express their views in concert in violation of the First Amendment of the United States Constitution; and (2) Act 10 violates the Equal Protection Clause by treating individuals represented by a collective bargaining unit different than unrepresented individuals.

The court rejected the unions’ first argument that their members’ First Amendment right to associate was burdened by Act 10’s restrictions limiting public sector collective bargaining to the topic of base wages. The court reasoned that the right to freely associate means there can be no negative reaction against associating, but that the right does not mean others, in this case employers, can be compelled to then listen to or negotiate with the association.

The decision by U.S. District Judge William Conley affirmed the Constitutionality of Act 10 stating: “This difference is likely of no comfort to plaintiffs, but the First Amendment does not require an affirmative response from governmental entities; it simply requires the absence of a negative restriction….Under Act 10, general employees remain free to associate and represent employees and their unions remain free to speak; municipal employers are simply not allowed to listen.”

The court also rejected the unions’ argument that Act 10 violated the 14th Amendment’s Equal Protection Clause by limiting base wage increases for represented employees to a cost-of-living adjustment without doing so for unrepresented employees. The court held that the government had a rational reason for this distinction so it is constitutional.

While this decision clears the federal courts of all Act 10 cases, litigation over the controversial law is not finished. The Wisconsin Supreme Court will hear oral arguments later this year in Madison Teachers, Inc. v. Walker, and Wisconsin Law Enforcement Association v. Walker is pending in Dane County Circuit Court. Both of these state court cases raise similar complaints to those decided in this case.

In response to this latest decision, Attorney General J.B. Van Hollen said, “This case proves, once again, that Act 10 is constitutional in all respects and that the challenges to the law are baseless. I appreciate decisions like this that follow the law, and I look forward to bringing the remaining state court challenges before the Wisconsin Supreme Court, where we expect Act 10 to be upheld once again.”

Phil Neuenfeldt, president of the Wisconsin State AFL-CIO, issued a statement saying he was disappointed in the decision. “In America, workers have the right to join a union and with one stroke of his pen Governor Walker decimated that right,” the statement said. “Act 10 always has and always will infringe upon a worker’s right to collective bargaining and democracy in the workplace.” 

UPDATE: On September 17, Dane County Circuit Judge Juan Colás decided another Act 10 related case. The Milwaukee Journal Sentinel reports:

In September 2012, Colás sided with Madison Teachers Inc. and a union representing City of Milwaukee employees by ruling the law violated local workers’ constitutional rights to free speech, free association and equal representation under the law by capping union workers’ raises but not those of their non-union counterparts.

The state appealed, and the Court of Appeals asked the Wisconsin Supreme Court to take the case without the appeals court ruling on it. The Supreme Court agreed to take the case in June.

Meanwhile, a dispute developed between the state and the unions involved in the case over whether Colás’ decision applied to only the unions that sued or all unions in Wisconsin representing teachers and local workers. (Both sides agreed the decision did not apply to state employee unions.)

Madison Teachers Inc. filed a motion with Colás asking him to enjoin the enforcement of Act 10, as the labor law is known, against local government unions.
In his decision Tuesday, Colás agreed his original ruling barred the Wisconsin Employment Relations Commission from enforcing key parts of Act 10 for all local government unions.

“The question here is not whether other courts or non-parties are bound by this court’s ruling,” Colás wrote. “It is whether the defendants are bound by it. Plainly they are, as all parties to a lawsuit are, and in a case in which the statute was found facially unconstitutional they may not enforce it under any circumstances, against anyone.”

But Colás declined to issue an injunction against the state. That’s because the state is not enforcing the provisions of Act 10 that have been struck down against the unions that brought the case.

The state is enforcing those provisions against other unions, but Colás determined he could not issue an injunction because they are not parties to the case.
“The defendants may be causing irreparable harm to others, who are not plaintiffs in this case. …Though the defendants are bound by the court’s judgment, even with respect to their actions toward non-parties, the court cannot issue the requested injunction,” Colás wrote.