After this past Friday, if Yogi Berra lived in Wisconsin, he might be tempted to say, “It’s like deja vu, all over again.”
For after traveling to the Wisconsin Supreme Court in a constitutional test of the process by which the Legislature passed it – the justices upheld it – and being the catalyst for an attempted but unsuccessful bid to recall Gov. Scott Walker, the state law curbing collective bargaining for most public employees has again been tossed out on constitutional grounds by a Dane County circuit court judge.
This time it’s not the process but the law itself that is in contention. In a 27-page decision in Madison Teachers Inc. et al v. Scott Walker et al, judge Juan Colas ruled Friday that major provisions of the law violate the plaintiffs’ rights of free speech, association and equal protection, and he declared those portions void and without effect.
That means the case is likely headed back to the Supreme Court, and probably sooner rather than later. In 2011, the high court reinstated the law after Dane County judge Maryann Sumi blocked its implementation because of her conclusion the Legislature violated the open meetings law when it passed it.
In this case, the plaintiffs include a union representing members of the Madison Metropolitan School District and a union representing employees of the city of Milwaukee. While the decision applies to local governments and school districts, it does not carry to state workers, who were not associated with the lawsuit.
“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,” Colas wrote in the decision.
Those rights are fundamental, he concluded.
The decision created more questions than answers about its immediate ramifications for local governments and school districts. For example, the law limits most collective bargaining (police and fire unions were exempted) to wage increases, and even then any wage increases cannot surpass the rate of inflation. The law precludes bargaining over benefits and working conditions and requires workers to pay more for health and pension benefits.
But the decision seems to put all of those back on the bargaining table for municipal workers and school employees. That left local officials, many of whom have already modified benefits and work rules to comply with the law, wondering about the status of those changes, as well as about the status of their budgets, given substantial state funding cuts.
Both Gov. Scott Walker and state attorney general J.B. Van Hollen said the state would appeal, and Van Hollen said he would ask the courts for a stay of the judgment, allowing the law to remain in effect while it winds through the appeals process.
“We believe that Act 10 is constitutional in all respects and will be appealing this decision,” Van Hollen said. “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.”
Walker railed against what he called the judicial activism of the judge. The governor said enough was enough.
“The people of Wisconsin clearly spoke on June 5,” Walker said. “Now, they are ready to move on. Sadly a liberal activist judge in Dane County wants to go backwards and take away the lawmaking responsibilities of the Legislature and the governor. We are confident that the state will ultimately prevail in the appeals process.”
Meanwhile, organized labor and Democrats praised the decision, saying it was not only a victory for free speech but critical for economic recovery.
“Restoring the rights of workers to collectively bargain is a key part of building back Wisconsin’s economy,” Senate majority leader Mark Miller (D-Monona) said. “Because of Gov. Walker and legislative Republicans, tens of thousands of workers could no longer negotiate over the hours they work, the safety conditions they labor under, or the health insurance and retirement benefits they and their families depend on. This ruling is a positive step forward to restoring rights that were abruptly stripped away and opens the door to allow workers and employers to negotiate agreements that are mutually beneficial.”
State Sen. Glenn Grothman (R-West Bend) urged the Supreme Court to take the case immediately without waiting for an appellate court review, which it can do through a procedure known as certification.
“The idea that a judge would find a pretext to say that it is against the law for government employees to pay for part of their pension and some of their healthcare benefits, to make it easier for a school district to remove a bad teacher, for a school district to impose a dress code on teachers, or for a city or county to promote employees based on seniority rather than merit is absurd,” Grothman said. “Some judges today are rendering decisions one would expect from a banana republic dictatorship or newly independent country in which respect for the law has not been established. I am sure all counties, municipalities and school districts want to know where they stand. Therefore, it is extremely important the Supreme Court take up this case immediately.”
Grothman said policy makers should take the decision as a “clarion call” to prevent the state’s education system from being a breeding ground for left-wing extremism.
“It should be a particular embarrassment that judge Colas is a product of the UW law school, so is judge Sumi who earlier tried to overturn Act 10,” he said. “Rather than wasting money on current diversity bureaucrats, we must guarantee intellectual diversity at the University of Wisconsin in general and the law school.”
In his ruling, Colas said the state statute targeted and burdened local public employees who chose to join a union, and in so doing cast them into a separate class, and treated them differently, based only on that distinction.
In its arguments before the court, the union had laid out multiple examples of such alleged burdens, namely, that the statutes prohibit municipal employers from offering represented employees a basic wage increase greater than the cost of living; from collectively bargaining with represented employees on any fact or condition of employment other than wages; from entering into a fair share agreement, or an agreement that all members of the bargaining unit, whether they belong to the union or not, pay a proportionate share of the costs of bargaining and contract administration; and from deducting membership dues for a labor organization from wages of members of a labor organization.
Colas’ decision noted the distinctions created by those provisions.
“The prohibitions against offering the base wage increases above the cost of living or negotiating on the other terms of employment do not apply to employees who are not represented by a union,” the decision states. “The absolute prohibition on deducting membership dues from wages applies only to membership dues for general employee labor organizations; another clause permits dues deductions for public safety and transit unions under certain conditions.”
For their part, Colas wrote, the state argued that, while the law might indeed burden the economic effectiveness of the employees associational activities, it did not take away their right to associate.
“The statutes, they argue, only ‘limit the panoply of collective-bargaining privileges afforded Plaintiffs’ and do not impair their right to ‘associate together in the first instance,’” Colas wrote in summation of the state’s argument. “The changes do not prohibit public employees from associating for the purpose of collective bargaining, or for other purposes, or from writing letters, holding meetings or petitioning the government.”
Can’t demand surrender of rights
In the end, he rejected the state’s arguments. Citing a state Supreme Court determination that the holding out of a privilege to citizens upon a condition of nonmembership in certain organizations was a more subtle way of encroaching on constitutionally protected liberties than a direct criminal statute, Colas wrote: “Persons, even if they have no right to a legislatively conferred benefit, cannot be required as a condition of receiving that benefit, to surrender constitutional rights, ‘unrelated to the purpose of the benefit,’ or be required ‘to comply with unconstitutional requirements.’”
For example, one federal court case addressed a federal law that prohibited members of “subversive organizations” from being tenants in federally subsidized housing. In that case, the U.S. Supreme Court held that the law violated the constitution by choosing to operate a housing program and then conditioning participation in it on a surrender of the constitutional right to free speech and association, and that Congress could do so only by showing that such an infringement was necessary to prevent a substantial evil.
He likened that case to the matters at hand, saying the state could not discriminate against those opting to engage in government-sanctioned collective bargaining by demanding that they give up constitutional rights to do so.
“It is undisputed that there is no constitutional right to collective bargaining,” Colas wrote. “Similarly, there is no constitutional right to a government-subsidized housing program. Yet the courts have held that once the government elected to offer subsidized housing it could not condition eligibility for it upon surrender or restriction of a constitutional right unless that surrender or restriction was necessary to prevent a substantial evil that would threaten the operation of the program. In the same way when the government elects to permit collective bargaining it may not make the surrender or restriction of a constitutional right a condition of that privilege.”
In the statute at issue, Colas continued, the state has in fact imposed significant and burdensome restrictions on employees who chose to associate in a labor organization, based upon their choice alone.
“The statute limits what local governments may offer employees who are represented by a union, solely because of that association,” he wrote. “It has prohibited general municipal employees from paying union dues by payroll deduction, solely because the dues go to a labor organization (unlike the restrictions found constitutional in [a U.S. Supreme Court case], which prohibited payroll deductions of dues for any political activities of any organization, regardless of viewpoint, identity or purpose). Employees may associate for the purpose of being the exclusive agent in collective bargaining only if they give up the right to negotiate and receive wage increases greater than the cost of living. Conversely, employees who do not associate for collective bargaining are rewarded by being permitted to negotiate for and receive wage increases without limitation.”
Likewise, he continued, the prohibition on fair share agreements meant that employees in a bargaining unit who join the union that bargains collectively for them are required to bear the full cost of collective bargaining for the entire bargaining unit, including employees in the unit who do not belong to the union but receive the benefits of the bargaining.
“Statutes that burden the exercise of a constitutional right for a lawful purpose and reward the abandonment of that right infringe upon the right just as did the prohibition (in the public-housing case) against members of certain associations residing in public housing,” Colas wrote.
That said, that he did indeed find infringement in the statute, Colas said the only question remaining was whether the harm done to the constitutional right was outweighed by the evil it sought to prevent. The state showed no such evidence, he stated.
“Without any evidence or argument that the infringement serves to prevent an evil in the operation of the bargaining system created by the statutes, the court must find the infringement to be excessive and to violate the constitutional rights of free speech and association,” he concluded.
The court also found that the statute violated the equal protection clauses of both the state and federal constitutions.
“Put simply, equal protection is the constitutional obligation government has to treat people equally when they are similarly situated, unless it has a reason not to,” Colas wrote. “If a fundamental right is affected, the reason must be a very good one.”
Or said another way, cases alleging a breach of equal protection must show that a statute treats members of a similarly situated class differently. So, he stated, the question could first be boiled down to: Do the statutes create distinct classes?
“They do,” Colas concluded. “The two classes are 1) general municipal employees who are represented by a labor organization in bargaining and 2) general municipal employees who are not.”
The state asserted that the statute did not create those classifications; instead, they were created by the employees who chose which class they wished to join. Colas rejected that position out of hand, saying the state offered no authority for it.
“The argument ignores the fact the challenged statutes create the classes, the classes are exclusive, and that municipal employees must be in one or the other,” Colas wrote.
What’s more, he continued, the classes were similarly situated because there was no difference between them except for union membership. Because they are similarly situated, and because one class is treated differently based solely on membership in that class, the statute violates the equal protection clauses of the constitutions, Colas concluded.
Finally, the judge determined, the statute also violates the state constitution’s Home Rule provision by setting pension contributions for city of Milwaukee employees.
Richard Moore may be reached at email@example.com