Taxpayer tab: $961,000 and counting to defend Act 10

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Nearly $1 million.

That’s the price tag to date Wisconsin taxpayers have paid to outside special counsel in defense of Act 10, Gov. Scott Walker’s signature law reforming public-sector labor union collective bargaining in the state.

The tally is considerably higher, when factoring in the man hours and dedicated resources of the state Department of Justice, perhaps running into the millions of dollars, according to one legal expert.

But a precise accounting is difficult because the DOJ hasn’t tallied the legal costs directly associated with the defense of Act 10.

The state’s cost for special counsel, paid to Madison-based law firm Michael Best & Friedrich for about two years of service, was $961,035.61, according to contracts released by the governor’s office last year.

But the DOJ is “no longer using special counsel, or outside counsel, for Act 10 litigation,” according to agency spokeswoman Dana Brueck.

The DOJ doesn’t account for the in-house costs associated with cases like Act 10.

“Our AAGs (assistant attorney generals) are salaried and we don’t track their time for this type of matter,” Brueck said in a follow-up email to Wisconsin Reporter. “Any tallied costs would’ve been the costs under the special contracts.”

Milwaukee legal expert Rick Esenberg said it’s safe to assume plenty of DOJ time and energy has been devoted to litigation involving Act 10, legislation that, for public unions, comes down to a matter of life and death.

“How do you value that?” asked Esenberg, founder, president and general counsel of the Wisconsin Institute for Law and Liberty, a Milwaukee-based public interest law firm that has filed actions against government entities that have defied Act 10. “If you were to take the distributed cost to the taxpayers, the hourly rate is going to be a lot less than the rate for Michael Best & Friedrich, but it still is going to be a heck of a lot of money.”

Esenberg said assistant attorneys general are spending as much time as a legal counsel from a contracted law firm would to write briefs and study complex cases involved in the defense of Act 10.

“You’re probably talking millions of dollars,” he said.

There is, ultimately, the opportunity cost, the amount of time and manpower taken away from other DOJ projects.

Taxpayers are funding the constitutional defense of a law that’s been upheld time after time in all but one court.

The latest vindication of Act 10, which limits government-based collective bargaining to wages up to the rate of inflation and takes benefits off the negotiating table, came Friday when the 7th Circuit U.S. Court of Appeals in Chicago again declared Act 10 constitutional.

Walker celebrated the unanimous ruling, asserting the reforms have saved taxpayers more than $3 billion.

“In every case that has reached a final decision, Act 10 has been upheld,” Walker said in a statement. “(Friday’s) unanimous federal appeals court (ruling) continues that trend, and we remain confident the Wisconsin Supreme Court will also uphold Act 10.”

Act 10 has effectively withstood a constitutional challenge in all but one courtroom, that of Dane County Circuit Judge Juan Colas.

Colas has struck down parts of Act 10 as unconstitutional, in a case brought by the Madison Teachers Inc. and Public Employees Local 61. The state Supreme Court is deliberating that case.

Colas’ circuit court peer, Dane County Circuit Judge John Markson, in October rejected the same union push to kill the law, enacted in 2011 following weeks of massive protests at the state Capitol.

Standing with several other judges, Markson declared the law doesn’t violate union members’ rights of free speech as association.

Wisconsin Attorney General J.B. Van Hollen lauded Friday’s unanimous ruling as a “victory for the law and for Wisconsin taxpayers.”

But the costs to defend a law that has proved constitutional over a lengthy legal battle has cost taxpayers plenty.

Esenberg said it’s either sink or swim for public employee unions, which have seen their numbers plummet in the nearly three years Act 10 has been on the books.

“From the unions’ perspective, this truly is existential,” the legal expert said. “They’re going to do whatever they can to get out from under this, and the state has no choice but to defend itself.”

Contact M.D. Kittle at mkittle@watchdog.org.