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home : opinions : op ed columnist September 15, 2014

9/21/2012 5:17:00 AM
Need a radical court ruling, just call the Monteman

Richard Moore
Investigative Reporter


There’s a reason liberals always file their court cases in Dane County. They know the activist judges there are as culturally biased, morally unprincipled, and politically absurd as they are. They are like three-card Monte con gamers, plying their trade in the courts in Madison.

And so it had to be expected that circuit court judge Juan Colas – let’s call him judge Monteman, shall we – would find Wisconsin’s much tested and resilient collective bargaining reform law to be unconstitutional, and last Friday he did just that.

Here we go again.

“Sections (of the statute) single out and encumber the rights of these employees to 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,” the judge wrote in the decision.

Wow. To the radical Monteman, wanting to balance the budget and require public employees to pay something resembling their fair share of benefits (meaning comparable to what private-sector workers pay) is not only a political affront but a constitutional violation.

Surely we have heard it all now. Trying to be fiscally responsible is not just wrongheaded politics; it’s a breach of our founders’ intentions.

Such thinking was sure to galvanize a public-opinion backlash, but the mainstream media was ready, and set out to defend the judge. The Milwaukee Journal Sentinel, in its story, hastened to say that Monteman did not sign the recall petition against Gov. Scott Walker. 

Translation: You can trust this man; he is obviously objective and reasonable. 

But judge Monteman is anything but objective and reasonable; like most con artists, he is unscrupulous and irrational. Even a quick read through the decision reveals a morally repellent ethics. The judge sets up his cardboard table in the courtroom, beckons the shilling unions to give him vacuous arguments he can agree with, and zeros in with legalistic hocus pocus on his marks, the people and the public interest of Wisconsin. 

The state rallied to the rescue with reasonable counterpoints, chasing the Monteman like police through the streets, but, don’t look now, having scored his scam, judge Monteman has folded his table and fled into the night.

But this too shall be undone, the street corner of the constitution rescued from the swindler upon appeal. All it takes is to expose the con of the game.

So let’s take a look at the three pillars of his soon-to-crumble determination. Then, let’s take up a collection and send judge Monteman back to law school, or con school, whichever he prefers, so long as it is out of state.

First, there is the right of freedom of speech and of association, which Monteman says the collective bargaining law violates on two levels. For one thing, he says, the statute imposes significant and burdensome restrictions on employees who choose to associate in a labor organization, based upon that choice alone. Though the government chooses to allow collective bargaining, he says, it is so restrictive that employees must surrender their constitutional right to associate for purposes of collective bargaining.

To buttress this argument, Monteman pointed to a case in which the U.S. Supreme Court struck down a federal law prohibiting those who belonged to so-called subversive but legal organizations from living in federally subsidized housing. In effect, the law denied them their right to freely associate, the high court rightly ruled.

And so it is with collective bargaining, Monteman determined. Just as the federal government could not create the privilege of a subsidized housing program and then condition participation in it on the surrender or restriction of the constitutional right to freely associate, so the state could not create the privilege of a collective bargaining system and condition participation in it on the surrender or restriction of those workers’ constitutional right to join a union.

Oh, what an intellectual mess this is. Monteman has switched cards right in front of our faces, the Queen of Hearts for the Jack of Spades. In reality, the cases are not similar. In the federal case, the government told people they could not both join those subversive groups and participate in the housing program. It was a direct nullification of the right to freely associate.

Not so in the matter of the state and collective bargaining. The state did not tell workers they could not both join unions and participate in collective bargaining. In fact, joining a union is the only way to collectively bargain. Duh.

Rather, the state changed the rules of the collective bargaining system. Everyone who could participate in collective bargaining before, still can; it’s just that its boundaries have been modified – which the state has every right to do since, as Monteman himself conceded, collective bargaining, like public housing, is a privilege granted by the state. 

To wit, the state can abolish it altogether, or modify what can be bargained, which is exactly what it did. To use the public housing example, the federal government could not prohibit membership in subversive organizations, but it could have changed the protocols of the program for everyone, as Wisconsin did in collective bargaining. It could have imposed curfews, for example, akin to the state imposing higher benefit contributions from employees; it could have limited outside overnight guests, just as Wisconsin limited the number of items that could be bargained; it could have precluded the use of its facilties for group meetings, much like Wisconsin prohibited the use of the payroll system for dues’ deductions. It could have done all that and met constitutional muster, just as the Wisconsin statute does.

(It is argued by some that Wisconsin did not change the collective bargaining rules for everybody because they left intact the old rules for public safety unions, but that exemption is based on a very narrow issue of public safety, in other words, an exemption necessary to prevent a substantial evil and thus constitutionally acceptable.)

The second alleged freedom of association issue involves another sleight of hand, called the Mexican turnover. As far as I can tell, this has nothing to do with Mexicans, so I don’t want to hear about it, but it does involve magically transforming one card into another. 

In this case, Monteman takes individual employees and, so he can compare them constitutionally, turns them into a group every bit as organized as their union counterparts. He has switched out the card of individualism and replaced it with the card of collectivism.

In effect, Monteman intones, the statute creates two classes, those workers who belong to unions, and those who do not, and that is the only distinction between them.

And yet members are treated differently based on their membership, the judge writes. As such, he adds, employees may associate for collective bargaining only if they give up the right to negotiate and receive wage increases greater than inflation. Conversely, he continues, employees who do not associate for collective bargaining are rewarded by being able to negotiate for wage increases without limitation. Those who associate for collective bargaining cannot negotiate benefits and working conditions, he goes on, while the other group can.

Here the judge is creating a mythical comparison. He asserts that individual workers are forced to surrender their rights when they bargain collectively,  while those who do not bargain collectively retain theirs. On the one hand, his language treats union members as threatened individuals being treated differently under the law, while on the other hand he treats individual employees as members of a powerful and privileged group.

In other words, he projects onto individuals the power and privilege that has in reality been too long preserved for unions. He organizes the nonorganized workers to create a false comparison and a fictitious constitutional infraction.

What the judge neglects to say is that those privileged nonunion members who retain their rights are not bargaining as a group but as individuals. On their own, as individuals, they are free to negotiate with the state and bargain over anything.

As it happens, and what Monteman also does not say, the state has not taken away that same right from those poor union members. To this day, every worker can at any time invoke his or her right to sit down and negotiate with a government body, on their own, over any employment issue. The state has preserved that right for all, and thus is treating no one differently.

It is quite simple, straightforward and logical. The state has not taken away anybody’s fundamental right to bargain with the government body. Workers who join unions have willingly suspended their right to individually negotiate and handed it to a third-party collective-bargaining enterprise that exists at the pleasure of the state. They can reassert the individual right at any time.

The last claim involves an alleged violation of the constitution’s equal protection clause. Under the provision, similarly situated employees must be treated the same unless there is good reason not to. Different treatment can’t be arbitrary, and it can’t be based on artificial distinctions. 

In Monteman’s mind, all municipal workers are in fact similarly situated with respect to their employer; the only difference is union status. To treat them differently solely because of that membership is to deny them equal protection.

But those workers are not similarly situated. To make the point, let’s look at hypothetical properties on Boom Lake in Oneida County, where some properties sit inside the city, and are not subject to shoreland zoning, while others are outside the city and are subject to strict zoning laws.

Imagine two neighbors. Their single-family homes and their properties are identical; they sit the same distance from the lake; their impact on the resource, the lake, is the same. The only difference is that one sits inside the city limits and one doesn’t. These are similary situated properties, and to treat them differently under the law, I would argue, is indeed an equal protection violation.

Now let’s compare two employees. They have the same skills, the same job, the same work ethic, the same years of experience. One sits in the union, and one does not. Does that make them, like the lake properties, similarly situated?

Absolutely not. Because the other difference is their impact on the resource, the government budget. The two neighbors on the lake might have the same impact on the water resource, but that’s not so with the workers. For workers who collectively bargain, negotiated agreements are commitments to hundreds and sometimes thousands of workers. That has a far greater impact on the resource than an agreement made with one employee. 

Again, the lake example underscores the point. Say one neighbor is replaced by a multi-family high rise with hundreds of residents rather than just the single family next door. All of a sudden, these properties are not similarly situated because the high rise, with its multitude of residents, is going to have a much larger impact on the water resource.

The state would have a good reason to teat the property differently, just as the state has every reason to treat groups that bargain collectively differently. 

One final word on the decision. Judge Monteman criticized the prohibition of fair share agreements, which means non-union members no longer have to share the cost of collective bargaining. Nonunion members no longer pay to work, in other words, and judge Monteman says that’s wrong because they pay nothing but still get all the benefits of those who do belong the union.

This is truly flawed thinking. It assumes collective bargaining benefits those who want to deal with their employer on their own. It is a built-in bias for unions.

Indeed, union contracts – the so-called benefits of bargaining – often work against workers, and those are the ones dropping out most of all. Many workers would prefer a system of merit pay rather the outdated seniority system grafted onto the workplace. Others detest union rules that impede productivity and innovation and the cross-training that provides additional skills.

So-called fair share agreements and closed shops in fact violate the constitutional rights of those who do not choose to associate with a union. 

Like so many liberals before, judge Monteman assumes what he is trying to prove. In so doing, he has dealt the state a three-card hand of malarkey, and he’s no doubt hoping the residents of Wisconsin will turn out to be easy marks. 

Richard Moore may be followed on Twitter at Twitter.com/rich1moore 







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