Wisconsin Supreme Court Upholds Act 10

On the last day of its 2013-2014 Term, the Supreme Court of Wisconsin issued an opinion upholding Act 10.  WILL has been a key player in that fight, filing amicus briefs on behalf of diverse clients arguing to uphold the law.

Writing for the majority in Madison Teachers, Inc. v. Walker, Justice Michael Gableman ruled that Act 10 was constitutional, rejecting arguments by teachers’ and other municipal employees’ unions that the law violated their constitutional rights of free speech and free association.  The unions had argued that the limitations on topics of collective bargaining, along with prohibitions on so-called “fair share” agreements, dues deductions, and annual recertification requirements, imposed unconstitutional conditions on their ability to organize and speak.  However, the court held that “the plaintiffs’ associational rights are in no way implicated by Act 10’s modifications to Wisconsin’s collective bargaining framework” because “[t]he plaintiffs remain free to advance any position, on any topic, either individually or in concert, through any channels that are open to the public.”  The court noted that the plaintiffs were erroneously attempting to conflate the constitutional right of joining a union to advocate on behalf of workers with the statutory privilege of collective bargaining.

The court also rejected arguments that Act 10 violated the Equal Protection Clause by permitting unrepresented employees to bargain individually for wages greater than CPI increases and other terms of employment while forbidding represented employees from bargaining the same.  The very existence of collective bargaining requires the government to treat represented employees differently than unrepresented employees, so the plaintiffs’ arguments would have invalidated every collective bargaining system in existence.  Finally, the court rejected challenges to portions of Act 10 that affected Milwaukee differently than other municipalities in the state.

The vote in the case was 5-2, with Justice Ann Walsh Bradley dissenting, joined by Chief Justice Shirley Abrahamson.  Justice Crooks wrote a separate concurrence noting his political disagreement with Act 10 and grudging acceptance that it is constitutional.

“The court accepted the arguments we have been making all along,” said Rick Esenberg, President and General Counsel of WILL.  “Court after court has upheld Act 10 against constitutional challenges, and this decision puts the final nail in the coffin of the hopes of those who sought to achieve through the courts what they could not in the legislature.”

The decision can be read here.

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