On July 3, 2024, Dane County Circuit Court Judge Jacob Frost announced his intention to find 2011 Wisconsin Act 10 and portions of 2011 Wisconsin Act 55 (collectively referred to as “Act 10”) unconstitutional and requested further briefing from the parties to that case prior to issuing a final decision. On December 2, 2024, Judge Frost issued a written decision and order declaring significant parts of both Act 10 and related portions of 2011 Wisconsin Act 55 unconstitutional (Abbotsford Education Assoc., et al., v. WERC et al., Dane Co. Circuit Court, Case No. 2023CV3152). An appeal has been filed on behalf of the Wisconsin State Legislature, which was not an initial party in the case but had previously intervened. It is also likely a request for a stay pending appeal will be filed in the near future. If Judge Frost denies the stay, a similar request will likely be made to the Wisconsin Court of Appeals to avoid statewide disruption and confusion while the appeal is pending.
The decision offers little or no practical guidance on what reversing nearly 14 years of Act 10 practice means for public employers and employees. As was the case after Act 10’s passage, it will likely take a considerable amount of time for the litigation to reach a result that provides the parties and all of the municipal employers and employees in Wisconsin with any certainty moving forward.
The recent decision itself is premised on the same basic argument that Judge Frost accepted in his July decision, to wit, Act 10 is unconstitutional under the Wisconsin Constitution’s Equal Protection Clause because he found no rational basis for Act 10’s distinction between general employees and the “select few public safety employees” who were spared Act 10’s more significant revisions to Wisconsin’s collective bargaining law. Those revisions included the limitation of legal bargaining issues to total base wages, capping the bargainable wage increase to a specific consumer price index (CPI) percentage unless a greater increase was approved through referendum, the elimination of binding interest arbitration, and requirements for annual recertification of bargaining units.
The decision contends that finding the law unconstitutional serves to automatically enjoin the State of Wisconsin and its agents from enforcing the unconstitutional provisions, and no separate injunction is needed. Judge Frost describes the result of his decision as “restoring the collective bargaining provisions of Act 10 to their form pre-Act 10,” but does not explain how that is to be accomplished.
Recap of Prior Decisions on Act 10
If the arguments in this case sound familiar, after Act 10’s passage both the Wisconsin Supreme Court and the federal Seventh Circuit Court of Appeals, which covers Wisconsin, upheld Act 10 as constitutional:
- Wisconsin Educ. Ass’n Council v. Walker, 7th Cir. (2013):
The Wisconsin Education Association Council sued the Walker administration in federal court, alleging violations of Free Speech and Equal Protection under the First Amendment. The 7th Circuit found that mandatory payroll deductions, which were prohibited by Act 10, are simply “tools” to effectuate speech, but do not constitute speech on their own. Second, the court found that the classification between “public safety employees,” and “general employees” is rationally based. Public safety employees include police officers and firefighters and are not subject to the restrictions under Act 10. The reasoning provided by the court was that “the role of public safety employees is too critical to risk a [labor] stoppage.”
- Madison Teachers, Inc. v. Walker, Wis. S. Ct. (2014):
Madison Teachers Incorporated (MTI) and other labor unions sued the Walker administration in state court, again challenging the Constitutionality of Act 10’s collective bargaining prohibitions. Specifically, MTI alleged violations to Freedom of Association and the Equal Protection Clause under the Wisconsin Constitution. The Wisconsin Supreme Court held that “general employees” have no constitutional right to negotiate with their municipal employer on any issue, and therefore, restricting negotiation topics to base wages does not infringe on employees’ constitutional rights. Second, the Court found that Act 10 placed no conditions on expression under the First Amendment because the ability to negotiate is not a “benefit” offered by the government. The Court upheld all provisions of Act 10.
- International Union of Operating Engineers, Local 139, AFL-CIO v. Daley, 7th Cir. (2020):
A public employee labor union and two of its individual members sued the Chairman of the Wisconsin Employment Relations Commission, James J. Daley, in federal court alleging that Act 10’s prohibition on payroll deduction of union dues, stricter recertification requirements, and limitations on collective bargaining subjects violated their First Amendment rights of speech and association. The lower court dismissed the complaint, stating that case precedent, including the 2013 case and Ysura, a Supreme Court case, clearly precluded relief. In Ysura v. Pocatello Education Association the Supreme Court determined that “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe on that right.” While such would certainly enhance unions’ First Amendment rights, states are not obligated to do so. The Seventh Circuit agreed with the lower court’s reasoning and affirmed the dismissal.
As part of the appeal of Judge Frost’s decision, those cases are certain to be argued as controlling the issues in the current case under a variety of legal theories. Judge Frost rejected those arguments in his July decision, but the appellate courts will no doubt analyze them as well.
It is worth noting that long before Act 10, and continuing thereafter, Wisconsin public safety employees were governed by different provisions in separate statutes (i.e., Wis. Stat. §111.77 covering public safety employees v. Wis. Stat. §111.70 covering general municipal employees). For example, public safety employees enjoyed binding arbitration before other public employees gained that right in 1977. In the July decision, Judge Frost acknowledged a rational basis for public safety employees being treated differently than other employees saying, “[t]hese employee groups are distinctly different. The Constitutional defect in Act 10 lies in its exclusion of multiple employee groups from the public safety group that should be in it under every explanation the Court can come up with.” The plaintiffs in this case are members or representatives of the general employee category, not the public safety employees that Judge Frost concluded were irrationally excluded from the public safety category in Act 10. Therefore, it is unclear whether a decision more limited in scope to those “excluded” public safety employees remains a possibility on appeal. Multiple other issues are likely to be examined on appeal.
What to do Now
If public employers receive a demand to bargain from a certified bargaining representative, they should consult with legal counsel as to an appropriate response that will take into account the current status of the law at the time of their request (e.g., potential stays and appeals), as well as the practical realities of a Wisconsin Employment Relations Commission that is not going to be equipped to take on a massive statewide resumption of collective bargaining on short notice. Thus, it is likely there will be little definitive action needed until appeals are exhausted.
In addition, any effort to engage in collective bargaining at this juncture will prove unworkable. First, it is unclear from what starting point to engage in bargaining. Implementing a 14-year hiatus during negotiations poses obvious difficulties. Significant changes have been made to any number of concepts that were part of the pre-Act 10 contracts, most of which cannot be restored to the status quo ante as had previously been the law. Second, if Judge Frost’s decision ultimately is reversed, and the prior courts’ analyses are restored, any bargaining that occurred over topics beyond total base wages will again be unlawful. This highlights the inherent complication with applying the decision at this point given that employers cannot be certain if bargaining is mandatory or prohibited.
Your Renning, Lewis & Lacy attorneys will continue to monitor the litigation and provide updates as developments warrant.
