Recently, there has been a lot of discussion about how to prepare for the impending elimination of 2011 Wisconsin Acts 10 and 32 (Act 10) and a return to traditional collective bargaining between unions and municipal employers, including public school districts. However, before taking any immediate actions or making any abrupt changes to compensation, fringe benefits, and/or other rules/policies governing public employees, it is important to understand the status of the current court case addressing Act 10.
This Legal Update will review Abbotsford Education Association v. Wisconsin Employment Relations Commission, Appeal No. 2025 AP 000114, which is pending before the Wisconsin Court of Appeals and which concerns an order issued by Dane County Circuit Court Judge Jacob Frost in December 2024, declaring Act 10 unconstitutional.
Act 10 History. Act 10 was a budget adjustment act that made significant changes to public employee collective bargaining rights, compensation, and fringe benefits. After much attention, political jockeying, and litigation, Act 10 became effective on June 29, 2011.
Act 10 significantly narrowed the collective bargaining rights of general municipal employees, including school district employees. Examples of changes resulting from Act 10 include:
- School districts and other municipal employers are permitted to bargain with unions representing general municipal employees over total base wage increases only and such increases are restricted to no more than the applicable consumer price index (CPI-U).
- Collective bargaining agreements are limited to one-year terms.
- Unions representing general municipal employees may not collect dues through deductions directly from employee paychecks.
- Fair share membership in the unions representing general municipal employees are eliminated.
- Unions representing general municipal employees must submit to annual recertification elections.
- In both recertification and certification elections, unions representing general municipal employees must obtain at least 51% of the votes of all the general employees in the collective bargaining unit.
- If the union representing general municipal employees is decertified, the union cannot seek representation again for at least 12 months from the date of decertification.
- School districts and other municipal employers may not pay for employee contributions to the Wisconsin Retirement System.
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Several groups challenged the constitutionality of Act 10 at the time of its enactment. In Madison Teachers, Inc. v. Walker, 2014 WI 99, MTI and other public sector labor unions argued that Act 10 violated the Freedom of Association and Equal Protection clauses under the Wisconsin Constitution. Ultimately, the Wisconsin Supreme Court held that general municipal employees have no constitutional right to negotiate with their municipal employer on any issue, such that a restriction to bargain only over the issue of base wages does not infringe on the employees’ constitutional rights. The Wisconsin Supreme Court found that Act 10 placed no unconstitutional conditions on individuals’ exercise of First Amendment rights, as the ability to negotiate is not a “benefit” offered by the government. The Wisconsin Supreme Court upheld all provisions in Act 10.
In Wisconsin Educ. Ass’n Council v. Walker, 705 F.3d 640 (7th Cir. 2013), WEAC challenged the constitutionality of Act 10, specifically alleging that the law violated the Free Speech and Equal Protection Clauses of the U.S. Constitution. The Seventh Circuit Court of Appeals found that mandatory payroll deductions were not expression, but tools to assist with expression, such that revoking payroll deductions would not impose an obstacle on protected speech. The Seventh Circuit Court of Appeals held that “the role of public safety employees is too critical to risk a [labor] stoppage” and therefore, provides a rational basis to exclude public safety employees from the limitations on general employees. The Seventh Circuit Court of Appeals explained that the state’s interest in reducing the cost of public employment is a permissive rationale behind the goals of Act 10. According to the Seventh Circuit Court of Appeals: “It may have been a poor choice [for labor relations], but it is not unconstitutional.” The Seventh Circuit Court of Appeals upheld Act 10.
Dane County Circuit Court Decision. On November 30, 2023, the Abbotsford Education Association and several other public sector labor unions and union members filed a lawsuit in Dane County Circuit Court against the Wisconsin Employment Relations Commission and several state officials to, once again, challenge the constitutionality of Act 10. The Plaintiffs requested that the Court issue an injunction to prohibit continued enforcement of several provisions in Act 10.
On January 16, 2024, the Defendants filed a motion to dismiss the case arguing, among other things, that Act 10’s constitutionality had already been decided by both the Wisconsin Supreme Court and the U/S/ Court of Appeals for the Seventh Circuit. On July 3, 2024, Judge Frost denied the Defendants’ motion to dismiss and instead issued a decision wherein he concluded that Act 10’s treatment of two classifications of employees – “general employees” and “public safety employees” – was irrational, arbitrary, and violated the Equal Protection Clause of the Wisconsin Constitution.
On July 26, 2024, the Plaintiffs filed a Motion for Summary Judgment. On December 2, 2024, Judge Frost issued a Decision and Order granting the Plaintiffs’ Motion.
Appeal to the Court of Appeals and the Wisconsin Supreme Court. In December 2024, the Defendants filed an appeal of Judge Frost’s Decision and Order to the Wisconsin Court of Appeals. On December 18, 2024, Judge Frost issued a temporary stay. On January 23, 2025, Judge Frost issued a stay while the appeal is pending.
On January 17, 2025, the Plaintiffs filed a petition to bypass the Wisconsin Court of Appeals and have the case directly heard by the Wisconsin Supreme Court.
On February 12, 2025, the Wisconsin Supreme Court refused to allow the case to bypass the Wisconsin Court of Appeals. Therefore, it will be heard by the Court of Appeals first. The case has not been expedited so it will follow a regular briefing schedule as per Wis. Stat. § 809.19.
The last recorded activity in this case was in July 2025, as the Court of Appeals is continuing to receive briefs from non-parties, i.e., Amicus Briefs, presenting arguments for and against Act 10 and its constitutionality.
Wisconsin Supreme Court Justices. On January 30, 2025, Wisconsin Supreme Court Justice Brian Hagedorn recused himself because he served as Governor Walker’s legal counsel and participated in the drafting, promoting, and defending of Act 10. On February 12, 2025, Wisconsin Supreme Court Justice Janet Protasiewicz responded to requests to recuse herself from the case because she participated in the 2011 protests at the State Capitol against Act 10 and signed the petition to recall Governor Walker. She declined.
On April 1, 2025, Susan Crawford was elected to the Wisconsin Supreme Court. During her campaign she stated definitively: “I fought against Act 10” when referencing her work for MTI as a reason to vote for her. Justice Crawford suggested that she would “most likely” recuse herself from a case involving Act 10 if the case concerned the same provisions she challenged. However, she observed that the specific provisions in Act 10 at issue in the Abbotsford case are different from the specific provisions involved in the Act 10 litigation in which she was involved as an advocate.
What to do now? It is unlikely that any final decisions regarding Act 10’s constitutionality will be issued before the end of the calendar year of 2025 and possibly not even before the conclusion of 2025-2026 school year. Therefore, there is no need to take any immediate action.
Moreover, even if the Court of Appeals or Supreme Court invalidates Act 10, it is unclear whether such a decision would be applicable retroactively or prospectively; whether it will result in further litigation (e.g., through a remand to the Dane County Circuit Court) or will include detailed instructions about how to proceed; or whether legislative action prior to a court decision might impact that analysis. Because of this uncertainty, it is difficult to take any preparatory action. Indeed, it is advisable to be extremely cautious about taking any action or making any representations about the school district’s (or other municipal employer’s) position or plans in the event Act 10 is invalidated. We simply cannot predict what will (and will not) be included in the decisions issued by the Court of Appeals and the Supreme Court on this subject. Any actions taken or representations made now could impair the school district’s (or other municipal employer’s) bargaining position moving forward.
Instead, it is important for municipal employers to continue to adhere to the Municipal Employment Relations Act, as modified by Act 10, for purposes of collective bargaining, elections, and employee rights to engage in protected, concerted activities. For some municipal employers, this means continued bargaining over total base wage increases with certified labor unions. For others, this means participating in the certification election process facilitated by the Wisconsin Employment Relations Commission. For some, this means continuing to have unilateral control over wages, hours, and conditions of employment and making decisions regarding any changes based on the best interests of the school district, its students, its staff, and its community, which includes considering financial constraints and the desire to attract and retain the best professional and support staff.
Conclusion. We will continue to monitor the Abbotsford case and issue updates regarding the legal status of Act 10, as such updates become available.
