Act 10 Is Still the Law

Published on: February 14, 2013

There has been considerable confusion regarding the impact of litigation regarding Act 10. A recent decision by the Seventh Circuit Court of Appeals in WEAC v. Walker upheld the law in its entirety. In September 2012, in Madison Teachers v. Walker, Judge Juan Colas of the Dane County Circuit Court declared Act 10 to be “null and void.” That decision has been appealed but the Wisconsin Court of Appeals has not yet ruled. What does this all mean?

The Wisconsin Institute for Law and Liberty (“WILL”) is reminding municipalities and school boards that Judge Colas’ ruling did not create a “window” to evade Act 10. Until otherwise noted by the state appeals court, unions and local units of government who negotiate contracts with terms that violate Act 10 run the risk of having those contracts declared unlawful.

A decision of a circuit judge has no precedential value and is binding on no one but the parties to whom it applies and those closely associated with those parties. It is not at all clear that Judge Colas’ decision is binding on local units of government or taxpayers who might object to collective bargaining agreements that violate the provision of Act 10. These are questions currently pending before the Court of Appeals.

Just as significantly, Judge Colas’ ruling does not enjoin or suspend the operation of Act 10. He simply issued a declaratory ruling saying that he thought Act 10 is unconstitutional. If he turns out to have been wrong – and the likelihood of that is quite high – then Act 10 will have remained in full force and effect from its effective date. Any collective bargaining agreements entered into after that date that are not permitted under Act 10 will be illegal and presumably null and void.

The Wisconsin Supreme Court will eventually have the final say on Act 10. Although we are encouraged by the recent federal case upholding Act 10, WEAC is not binding on the state courts that have to decide Madison Teachers. Nevertheless, if any unit of government renegotiates, or reopens, a union contract that violates Act 10, it does so at its own risk.

As always, WILL remains on the lookout for any unit of government that does not follow the law.

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