Wisconsin Supreme Court Upholds Collective Bargaining Curbs

Madison, Wisconsin demonstratorsPublic-sector unions in Wisconsin are having a hard time hiding their rage over the most recent round in the state’s fiscal war. Last Tuesday, June 14, by a 4-3 margin, the Wisconsin Supreme Court upheld a new law curbing collective bargaining rights for most state and local employees, part of a larger (passed) budget bill. The decision overturns a permanent injunction issued May 26 by Dane County (Madison) Circuit Judge Maryann Sumi blocking the law on grounds that Senate Republicans violated the state Open Meetings Law. Wisconsin Secretary of State Doug LaFollette announced he will publish the measure on June 28, thus making the law effective on June 29. The ruling reveals a polarized judiciary, replete with sharply-worded concurrence and dissent. Meanwhile, a coalition of unions has filed a federal suit to prevent the bargaining ban from taking effect.

The mood in Wisconsin, especially in the capital city of Madison, has been ugly since February, as Union Corruption Update repeatedly has noted. To recap: On February 17, thousands of demonstrators – actually, many looked like rioters – took over the Capitol Building, occupying it round the clock for three weeks in an effort to intimidate Republican lawmakers out of passing a two-year budget proposal submitted by new GOP Governor Scott Walker. The measure would: repeal collective bargaining rights over benefits and working conditions issues for public employees other than police, firefighters and state troopers; eliminate forced-dues check-offs for union employees; and raise worker contributions for retirement and health benefits. These and other steps, argued Walker, were needed to close a projected $3.6 billion, two-year budget gap.

All 14 Democrats in the state Senate responded to the plan by driving off to neighboring Illinois to block the quorum needed to hold a vote on the bill, triggering the union-led mass takeover of the Capitol. For weeks the missing lawmakers remained AWOL. Impatient with the impasse, Republican senators in March reintroduced a version of the bill that dealt only with the collective bargaining section of Gov. Walker’s plan. The measure passed 18-1 that month. The Wisconsin General Assembly, which included Democrats, passed the measure by 53-42 the next day. This provision then was reattached to the original “Budget Repair Bill” (formally known as “2011 Wisconsin Act 10”), which the Assembly and Senate approved in early April by respective margins of 58-36 and 22-11 (the missing Democratic senators by then had come home) and Gov. Walker signed.

Dane County District Attorney Ismael Ozanne, backed by the Democrats, meanwhile, already had gone to State Circuit Court in hopes of obtaining a temporary injunction against the law from taking effect. The suit alleged that the conference committee, in approving and sending the final bill to the Senate floor with insufficient time for debate, had violated the state Open Meetings Law. Judge Sumi presided – and agreed. She issued a temporary injunction on March 18, a move prompting the AWOL Democratic senators to return home. She made her ruling permanent on May 26.

Thus, the stage for Wisconsin Supreme Court review was set. Republicans, here as in the legislature, enjoyed an advantage. Justice David Prosser, a Republican, officially was declared the winner in his re-election after Democratic challenger JoAnne Kloppenberg on May 31 conceded defeat in her bid to contest the election on grounds of ballot irregularities. She had lost by about 7,000 votes. Given the urgency of the situation, the Court gave this case fast-track priority.

On June 14, the court, by a 4-to-3 margin, announced in a 68-page ruling that Senate Republicans had not violated the Open Meetings Law in passing the measure. The majority opinion, written by Justice Prosser along with Justices Michael Gableman, Patrice Roggensack and Annette Ziegler, summarized the situation: “Access was not denied. There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees… One of the courts that we are charged with supervising has usurped the legislative power where the Wisconsin Constitution grants exclusively to the legislature.” In an eight-page concurrence, Justice Prosser noted that if the GOP-controlled legislature rushed the bill into law, they had good reason to do so. “The circuit court concluded that the legislature should have provided public notice of the special session conference committee 24 hours in advance. The court did not acknowledge that thousands of demonstrators stormed and occupied the state Capitol within a few hours of the notice that a conference committee meeting would be held.”

Three other justices – Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks – issued a vigorous dissent, saying the majority had rendered a “hasty judgment” in a case in which “the answers are not clear and our precedent is conflicting.” The ruling, they asserted, was “based on errors of fact and law.” The trio offered this rebuke: “They (the majority) inappropriately use this court’s original jurisdiction, make their own findings of fact, mischaracterize the parties’ arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin’s constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891.” Justice Abrahamson further scolded Justice Prosser’s concurrence was “long on rhetoric and long on story-telling that appears to have a partisan slant.”

Governor Walker remarked that “the Supreme Court’s ruling provides our state the opportunity to move forward together and focus on getting Wisconsin working again.” Republican Senator Terry Moulton (Eau Claire County) likewise viewed the decision favorably. “I have always said it is very clear to me that Senate Republicans did not break the law and did not break their own rules,” he said. “I am pleased that the Supreme Court agrees and that we can begin implementation of this critical tool that will assist local governments and school boards balance their own budgets.” Union leaders, however, aren’t feeling any love. Phil Neuenfelt, president of the Wisconsin state chapter of the AFL-CIO, fumed: “This ruling is an affront to our democracy. Green-lighting the sort of shady, backroom tactics that Governor Walker used to ram his extreme budget through the legislature sets a dangerous precedent for the future of our state.”

The unions are putting such words into action. For one thing, they are spearheading ballot initiatives to recall nine Republican senators and three Democratic assemblymen who voted for Gov. Walker’s Budget Repair Bill. The Wisconsin Government Accountability Board recently approved opposition candidates. Primaries for the Republicans and Democrats will be held, respectively, this July 12 and July 19, with general elections to be held on August 9. In cases where there is no primary, the official recall date will be July 12 or July 19.

Organized labor also is going the judicial route. Last Wednesday – the day after the ruling was handed down – a coalition of unions filed a lawsuit in federal court to invalidate the law’s collective bargaining curbs. Plaintiffs include the AFL-CIO, the American Federation of Teachers, the Wisconsin Education Association Council (an affiliate of the National Education Association) and the American Federation of State, County and Municipal Employees (AFSCME). The law, allege the plaintiffs, takes away the unions’ constitutional freedom of speech and association, while illegally discriminating on the basis of employee classification.

The Battle for Wisconsin at minimum will take months to resolve. Indeed, at this point, it is hard to see any closure until Governor Walker’s term in office ends, an event that the state’s unions and political allies intend to help along as quickly as possible. The unfolding saga should serve as a learning experience to anyone who might believe that labor unions won’t pull out every possible stop to preserve their interests, even in the face of severe fiscal distress. They will, and not just in Wisconsin.