State Judge Guts Wisconsin Public Employees Union Curbs; AG Files Appeal

In Wisconsin, the conflict between public-sector unions and the administration of Republican Governor Scott Walker continues, ever assuming a new form – and this time a new victor. The latest round belongs to the unions. Last Friday, September 14, Wisconsin Circuit Judge Juan Colas (Dane County) struck down limits enacted in March 2011 on state and local employee collective bargaining power, arguing the law was unconstitutional on federal and state grounds. The decision enables city, county and school district employees to revert to their earlier situation; state employees, for the most part, are unaffected. Walker (see photo), who survived a union-led recall election this June, hasn’t wasted time firing back. His attorney general, J.B. Van Hollen, yesterday filed an appeal, requesting Judge Colas place his ruling on hold pending appeal.

Union Corruption Update has been covering the incendiary situation in Wisconsin since it began slightly over a year and a half ago. During the week of February 14-18, 2011, large and growing groups of demonstrators, mobilized by public employee unions, rallied inside as well as outside the state Capitol Building in Madison. They were protesting proposed legislation, the Budget Repair Bill (“Act 10”), introduced by new Governor Walker to close a two-year, $3.6 billion budget gap. Key features included larger required worker contributions to health and retirement plans, and elimination of collective bargaining over benefit-related issues, save for police, firemen and state troopers. (Wages and salaries would remain negotiable, albeit within established cost-of-living benchmarks.) It was tough but unavoidable medicine.  Wisconsin, like Ohio, Indiana, California and a number of other states, was facing tough fiscal trade-offs. But to demonstrators, this wasn’t about public policy; it was about war.

Things came to a head on Thursday, February 17. Not only had the crowd grown to unmanageable levels, but all 14 Democratic state senators fled the state that morning, decamping in Rockford, Illinois, and points beyond, so as to thwart a minimum quorum for a vote. In March, after a three-week stalemate, the remaining 19 senators – all Republican – decided to vote on the labor package as a freestanding measure. The measure passed 18-1 in favor. The next day the State Assembly approved the Walker plan by 53-42. Gov. Walker quickly signed the bill into law. Throughout that period, the governor, along with a number of lawmakers who supported him, received anonymous death threats.

The AWOL senators eventually returned home, but were unable to prevent the inclusion of the labor provisions into the Budget Repair Bill. The Assembly and Senate each approved the larger measure in April. But the Democratic lawmakers and their union allies already had devised an alternative strategy to block the plan from taking effect. Weeks before the final vote, Dane County (Madison) District Attorney Ismael Ozanne, a Democrat, had filed suit in state court to obtain a temporary injunction against the law. The suit alleged that the legislature’s conference committee, by approving and sending the final bill to the Senate floor without sufficient time for debate, violated the state’s Open Meetings Law. Dane County Circuit Judge Maryann Sumi granted an injunction on March 18, 2011 – this is what prompted the Democratic senators to come back to Madison. Judge Sumi made her ruling permanent a little over two months later.

The Walker administration appealed, setting the stage for a ruling by the Wisconsin State Supreme Court, which had a 4-3 Republican majority. On June 14, 2011, in a party-line decision, the Court held that Senate Republicans had not, in fact, violated the Wisconsin Open Meetings law. The new budget immediately went into effect. Anti-Walker forces were ready with another alternative: legislative recall. They sought to replace nine senators, six Republicans and three Democrats, who voted for Walker’s budget plan. The recall was almost successful, picking up a net two Democratic seats, narrowing the Republican senate lead from 19-14 to 17-16. Unsuccessful here, the next step for opponents of the governor would be his recall. Toward that end, activists circulated a petition in hopes of collecting the required roughly 540,000 signatures by the January 17 deadline. They would get a lot more – around 930,000. A special election, set for June 5, 2012, was on. Walker’s Democratic opponent, as in the November 2010 general election, would be Milwaukee Mayor Tom Barrett. Once again, however, Walker prevailed, this time by 53 percent to 46 percent, a slightly wider margin than the first time around.

Organized labor leaders, true to form, already had another ace up their sleeve just in case Walker survived. The previous summer a coalition of unions had gone to federal court to overturn the law. They came away with a partial victory. U.S. District Judge William Conley, an Obama appointee, late this March upheld the basic features of the law, but struck down two components. The State of Wisconsin, he concluded, lacked the authority to: 1) bar union bosses from deducting dues payments from member paychecks; and 2) require annual union recertification votes.

Last Friday, Dane County Circuit Judge Juan Colas, an appointee of Governor Walker’s Democratic predecessor, Jim Doyle, gave local government employees what they really wanted. The court repealed the curbs on union power on grounds that they deprived union members of their constitutional rights of free speech and equal protection under law. His decision also concluded that Act 10 violated the state constitution’s home rule clause by applying new pension requirements to City of Milwaukee employees. All local government unions in Wisconsin, with or without contracts in force, for the time being must operate under terms predating the law. In his 27-page ruling, Judge Colas wrote that certain sections of the law “single out and encumber the rights of those employees who choose union membership and representation solely because of that association and therefore infringe upon the rights of free speech and association guaranteed by both the Wisconsin and United States Constitutions.” Lester Pines, attorney for Madison Teachers Inc., one of two unions bringing forth the case (the other was the Milwaukee-based Public Employees Local 61, an affiliate of the Laborers), put it similarly and even more bluntly. “The law violates the right of association guaranteed by the constitution,” he said. “It violates the right of free speech and it violates equal protection.”

The Walker administration wasted little time in retaking the high ground. Attorney General Van Hollen issued the following statement the day after the ruling: “We believe that Act 10 is constitutional in all aspects and we will be appealing this decision. We also will be seeking a stay of Friday’s decision pending appeal in order to allow the law to continue in effect as it has for more than a year while the appellate courts address the legal issues.” Yesterday he made good on his word, filing an appeal. The administration has its share of backers in the legislature. Republican Assemblyman Robin Vos (Burlington), for example, called Judge Colas’ ruling an example of “the arrogance of the judiciary,” adding, “It’s a single judge out of step with the mainstream.”

The unions and their attorneys, not to mention the judge, appear to miss the larger issue of fiscal accountability. Combined savings to state and local governments in Wisconsin since passage of the Budget Repair Act was projected several months ago at more than $600 million. A study released in May by researchers at the Beacon Hill Institute at Suffolk University in Boston concluded that the law will enable local governments in the state to realize a combined annual costs savings of anywhere from $775 million to $1.2 billion. This efficiency has been achieved without mass layoffs.

The battle is far from over. Apart from Judge Colas’ ruling and the Walker administration’s appeal, there is a separate pending case, on equal protection grounds, filed by two unions representing a combined 2,700 public employees of the City of Madison and Dane County. And it’s not inconceivable the Colas ruling will make it to the U.S. Supreme Court. The state of Wisconsin, at least in the foreseeable future, remains a microcosm of a nation divided on economic issues, and indeed, on the very essence of what America is about. “There’s nothing that’s not partisan in Wisconsin,” University of Wisconsin-LaCrosse political scientist Timothy Dale noted two days after the ruling. It’s a point that few would debate.


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