Wisconsin Supreme Court upholds Act 10

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — After three years of legal battles, the war for Gov. Scott Walker’s cornerstone public-sector collective bargaining reforms is over, with the state Supreme Court on Thursday upholding Act 10 in its entirety.

Altogether, it was a big day for conservative causes. Wisconsin’s high court also ruled in favor of the state’s controversial voter ID law, but that matter is far from settled.

The Supreme Court, in a 5-2 decision, with liberal Judge Patrick Crooks begrudgingly agreeing Act 10 is constitutional, put an exclamation point of approval on the public employee labor law that sent thousands protesters to the state Capitol and 14 Democratic senators fleeing across the state line in a bid to stop it.

All but one liberal Dane County judge had concluded Act 10, which holds wage negotiations to the rate of inflation, ends automatic union dues deductions, and requires annual union recertification votes, meets constitutional muster.

The lawsuit was originally brought by Madison Teachers Inc. and Public Employees Local 61, AFL-CIO.

The labor unions argued that Act 10 limited their ability to organize and right to speak under the First Amendment of the Constitution.

That position was upheld in 2012 by Dane County Circuit Judge Juan Colas, who argued that portions of Act 10 violated the constitution.

But the Supreme Court disagreed.

Justice Michael Gableman, who wrote in the majority opinion, asserted the unions’ “associational rights are in no way implicated by Act 10’s modifications to Wisconsin’s collective bargaining framework.” The labor unions, Gableman said, “remain free to advance any position, on any topic, either individually or in concert, through any channels that are open to the public.”

In disputing the unions’ claims, the court contends the plaintiffs erroneously attempted to “conflate the constitutional right of joining a union to advocate on behalf of workers with the statutory privilege of collective bargaining,” the Wisconsin Institute for Law and Liberty, a Milwaukee-based public interest law firm, said in a statement celebrating the court’s ruling.

“The court accepted the arguments we have been making all along,” said Rick Esenberg, president and general counsel of WILL, which had filed an amicus brief at the Supreme Court on behalf of the law, and represented several clients who contested local governments that defied Act 10.

“Court after court has upheld Act 10 against constitutional challenges, and this decision puts the final nail in the coffin of the hopes of those who sought to achieve through the courts what they could not in the Legislature,” Esenberg said.

Right-to-work advocates rejoiced, calling it a victory for opponents of compulsory unionization.

“The court’s decision strikes a mighty blow for individual workers who do not want anything to do with an unwanted union in their workplace,” Mark Mix, president of the National Right to Work Legal Defense Foundation, said in a statement. “Wisconsin government union officials should now understand that the constitutionality of (right-to-work) laws has long been a settled question. We’re happy to report that the court rejected the union lawyers’ frivolous arguments and ensured that thousands of Wisconsin’s civil servants will continue to labor free from union coercion.”

The foundation also filed an amicus brief in support of Act 10, and worked alongside WILL in a lawsuit against the Kenosha Unified School Board. In June, the board voted to nullify its collective-bargaining contract with the Kenosha Education Association as part of a settlement with the foundation and WILL.

A few other government entities in Wisconsin relied on Colas’ ruling, defying the collective-bargaining reform law. Thursday’s Supreme Court decision puts those labor agreements in peril.

“In the wake of the Wisconsin Supreme Court’s disappointing ruling (Thursday) we will be consulting with our labor attorney and carefully evaluating the language of the decision and our legal options moving forward,” said Joe Parisi, executive of Dane County, which has continued to bargain with employees outside of the boundaries of Act 10.

Public employee unions expressed disappointment, but not surprise, in the conservative-controlled state Supreme Court’s ruling.

The Wisconsin branch of the American Federation of State, County and Municipal Employees, kept a brave face, saying that its work in building its labor base will gone on even as the union’s membership numbers have plummeted in the post-Act 10 world.

“We continue to organize members and work collectively to solve problems, just as we have since Act 10 was rammed through the legislature, and just as we did for many decades before Wisconsin had any kind of formal collective bargaining law,” AFSCME said in a statement.

“We have fought in the courts because we felt duty bound to exhaust all avenues to undo a terrible wrong,” the union said.

Exhausting those legal avenues cost Wisconsin taxpayers plenty.

A Wisconsin Reporter review in April found that the state spent $961,000 on outside special counsel in defense of Act 10.

Wisconsin Attorney General J.B. Van Hollen said the court’s decision settles important state policy and serves to “strengthen our constitutional democracy.”

The plaintiffs could appeal to the U.S. Supreme Court, but based on recent public-sector union-related decisions by nation’s high court, the odds do not appear to be in organized labor’s favor.

The state Supreme Court also upheld Wisconsin’s law requiring voters to provide photo identification at the polls.

Justice Patience Roggensack, writing for the majority, declared the law constitutional, and that requiring identification does not violate a citizen’s fundamental right to vote or add additional qualifications to the right.

“(T)he inconvenience of making a trip to (a state motor vehicle office), gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote,” Roggensack wrote.

The court did conclude that charging individuals for a birth certificate, needed to obtain a photo ID, would constitute an unconstitutional poll tax. The fix, the court wrote, would be to order the Department of Motor Vehicles to accept applications for Voter ID’s without birth certificates, should an applicant not have one.

Roggensack asserts it is well within the Legislature’s power to require any person to “furnish such proof as it deems requisite” that the individual is qualified to vote.

Walker applauded the court’s ruling, declaring it a victory for election integrity.

A chorus of protests came in from the left, from mayors’ to U.S. representatives.

“We in city government are deeply disappointed with the Supreme Court’s decision to uphold this abhorrent law,” Madison Mayor Paul Soglin said in a statement. “The right to vote is at the core of our democracy.”

Soglin reminds Madisonians that the matter is far from settled. A federal court judge earlier this year enjoined the law. That decision is being appealed in federal court. So for now, and perhaps through the November general election, IDs are not required to vote in the Badger State.