Supreme Court Hears Act 10 Oral Arguments

On November 11 the Wisconsin Supreme Court heard oral arguments in the most hotly anticipated case of the year – Madison Teachers, Inc. v. Scott Walker. The case centers on the constitutionality of 2011 Wisconsin Act 10, also known as the budget repair bill, which sparked massive protests at the state capitol in the spring of 2011.

This is the second time Act 10 has come to the high court, but the first time the court has taken up the law on its merits.

The court summarized the case as follows:

This certification from the Court of Appeals, District IV, examines the constitutionality of various statutory changes made by 2011 Wis. Act 10 and 2011 Wis. Act 32, more commonly referred to respectively as the collective bargaining law and 2011-13 state budget.  

The Court of Appeals wrote: “We certify this appeal because of its sweeping statewide effect on public employers, public employees, and taxpayers and because of the need to clarify and develop law relating to associational rights and the home-rule authority of municipalities.”

A decision by the Supreme Court is expected to determine whether the changes in public employee collective bargaining enacted in Act 10 and Act 32 comply with a number of provisions in the Wisconsin Constitution. This, in turn, will provide guidance to public employers and employees regarding the current nature of public-sector collective bargaining and employer/employee relations.

Some background: The plaintiffs in this action are Madison Teachers, Inc. and one of its members, and Public Employees Local 61, a labor union representing employees of the city of Milwaukee, and one of its members.

The plaintiffs filed a complaint contending that certain provisions of the Municipal Employment Relations Act (MERA), as amended by Act 10 and Act 32, violate the constitutional associational and equal protection rights of the employees they represent. They contend the legislation creates similarly situated, but differently treated, classes of employees, namely, municipal employees who choose to associate with a certified agent and municipal employees who do not. They also argue that the Act 10 and Act 32 amendments impermissibly limit their rights to associate and speak to state and local governments.

The state argues on behalf of Gov. Scott Walker and defendants James R. Scott, Judith Neumann and Rodney G. Pasch of the Wisconsin Employment Relations Commission (WERC). It says that because collective bargaining is a statutory right, not a constitutional right, the legislature was free to change the requirements and parameters of public-sector collective bargaining.

According to the state, Act 10 does not impose any restrictions on any public employee’s right to speak, assemble, or petition the government and, therefore, does not infringe on any associational rights of public employees. As to the equal protection claim, the state takes the position that there is no violation because all public employees are treated equally with respect to constitutionally protected associational rights.

Siding with the plaintiffs, the circuit court declared the following statutory provisions unconstitutional in an order dated Sept. 14, 2012:

  • The provision prohibiting collective bargaining between municipal employers and the certified representatives for municipal general employee bargaining units on all subjects except base wages. Wis. Stat. § 111.70(4)(mb)1.
  • The provisions limiting negotiated base wage increases to the increase in the Consumer Price Index, unless a higher increase is approved by voter referendum. Wis. Stat. §§ 111.70(4)(mb)2., 66.0506, and 118.245.
  • The provisions prohibiting “fair share” agreements that previously required all represented employees to pay a proportionate share of the costs of collective bargaining and contract administration. Wis. Stat. § 111.70(1)(f) and the third sentence of Wis. Stat. § 111.70(2).
  • The provision prohibiting municipal employers from deducting union dues from the wages of municipal employees. Wis. Stat. § 111.70(3g).
  • The provision requiring annual recertification elections of the representatives of all bargaining units, requiring 51 percent of the votes of the bargaining unit members (regardless of the number of members who vote), and requiring the commission to assess costs of such elections. Wis. Stat. § 111.70(4)(d)3.

On Oct. 22, 2012, the circuit court denied the state’s motion for stay pending appeal. On March 12, 2013, the Court of Appeals denied the state’s motion for relief pending appeal. It concluded that the circuit court had acted within its discretion in denying the stay. Because of the statewide implications of the case, the Court of Appeals subsequently certified the appeal to the Supreme Court, which accepted review on June 14, 2013.

On Oct. 21, 2013, while the appeal was pending in the Supreme Court, the circuit court issued an oral order granting a motion filed by a group of non-party movants and holding the defendant WERC commissioners in contempt. In addition to arguing the merits of the constitutional issues, the WERC commissioners have also asked the Supreme Court to stay the circuit court’s Sept. 14, 2012 and Oct. 25, 2013 orders during the pendency of the appeal. The movants then sought permission to intervene in the appeal pending before the Supreme Court or to participate in oral argument on the issue of the stay of the circuit court’s Oct. 25, 2013 order.

On Nov. 8, 2013, the Supreme Court denied the motions of the non-party movants to intervene and to participate in oral argument in the Supreme Court. Its order also denied the motions of two insurance companies to intervene and to participate in oral argument on the stay issues. The court extended the standard amount of oral argument time to 45 minutes for the defendants-appellants and 45 minutes for the plaintiffs-respondents. 

Thus, the Supreme Court may decide initially whether to stay one or more orders of the circuit court while it considers the merits of the appeal, or it may wait to address the stay issue until it issues a decision on the merits. The Supreme Court is ultimately expected to issue a decision on the merits that could resolve whether the challenged portions of Act 10 and Act 32 violate a number of provisions in the Wisconsin Constitution.

This decision on the merits also may clarify the test for determining whether Wis. Stat. § 62.623, which was created by Act 10 and Act 32, violates Wisconsin’s Home Rule Amendment, Wis. Const. art. XI, § 3(1). Wis. Stat. § 62.623 prohibits First Class cities (currently only Milwaukee) from paying its employees’ contributions to the city’s retirement system. The Court of Appeals said a decision on this issue also may determine whether § 62.623 violates the constitutionally protected right of parties to contract with each other.

The Friday before oral arguments provided some pre-argument drama when the court issued an order after 10:30 p.m., determining who would have the opportunity to speak during the oral arguments and for how long.

The court split 4-3 on the order, which provided that non-party unions would not be allowed to participate because their motion to do so was untimely. Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and Patrick Crooks issued a sharply worded dissent arguing the decision not to allow other unions to intervene “contravenes our practice and principles of fair play, justice, and fundamental fairness enshrined in the adversarial nature of court proceedings and oral argument.”

On Monday, November 11, the court came to order for its 90 minutes of scheduled arguments. It was soon clear that the court had many questions and 90 minutes was overly optimistic. In the end, the arguments, which focused on the First Amendment right of association, lasted over four hours.

Video of the oral arguments from WisconsinEye.

As oral arguments were occurring, WisconsinEye’s Steve Walters interviewed three Marquette law professors for their take on the case. All of them agreed this is one of the most influential cases the court has heard in quite some time because it impacts the law, state culture, and politics.

Analysis of the case by Marquette Law professors from WisconsinEye.

The court typically issues its rulings the summer after it hears oral arguments, but it is possible that a decision could come at any time.