By Ryan Ekvall | Wisconsin Reporter
MADISON — Lawyers representing Wisconsin’s public-sector unions on Tuesday asked Dane County Circuit Court Judge Juan Colas to hold state “puppets” in contempt of court for continuing to enforce Gov. Scott Walker’s collective-bargaining reform law, even after Colas ruled the law unconstitutional.
“(Wisconsin Employment Relations Commission Chairman James Scott and Commissioner Rodney) Pasch are enforcing those administrative rules and they are forcing unions to have elections based on an unconstitutional law,” said Lester Pines, an attorney from Cullen Weston Pines & Bach, the law firm that represents Madison Teachers Inc. and the recently decertified Kenosha Area Education Association.
The government labor unions asked Colas to find Scott and Pasch in contempt of court, order them to cancel recertification elections and fine them each personally $2,000 for each day they do not comply with Colas’ ruling. They also asked that Scott and Pasch pay for the unions’ lawyers.
Pines insists democracy stands in the balance.
“If executive branch officials are allowed to ignore court orders, the rule of law is over,” he said. “That’s what this is about.”
Whether one supports Walker or the public employee unions, the highest interest of the public in this case is the separation of government powers, Pines said.
Not so fast, says Rick Esenberg, president of the Wisconsin Institute for Law and Liberty, a conservative public interest law firm based in Milwaukee. Liberals, he said, can’t have it both ways.
“We saw this with Obamacare,” Esenberg said. “There were decisions which struck down the individual mandate in the Affordable Care Act and the administration continued to implement it. There is no injunction here. There is simply a declaration. If Judge Colas turns out to be wrong, then it will be as if his decision never happened.”
Among other provisions, Act 10 requires public labor unions to recertify each year via election, where they need 51 percent of potential members to vote to continue. Members who don’t vote are counted as a ‘no’ vote. Recertification elections for 400 government unions representing more than 60,000 employees are scheduled for November.
Colas reiterated last week the state can’t enforce the law, but he refused to issue an injunction stopping them from doing so. He said he couldn’t issue an injunction because Madison Teachers Inc. and Public Employees Local 61 out of Milwaukee, which filed and won the lawsuit against Walker and Wisconsin Employment Relations Commission, have yet to be harmed by the law.
The state appealed the ruling and the Wisconsin Supreme Court is expected to hear the case sometime this winter. The law has been upheld in its entirety in federal courts.
Last week, WERC said it would apply the part of Colas’ ruling that said the judge wouldn’t stop the agency from enforcing the law. However, the half-dozen public labor unions represented by Pines and Hawks are “aggrieved people” and can move to hold the WERC agents in contempt,which would essentially force them to comply with Colas’ ruling, according to the lawyers.
Pines called Scott and Pasch “renegade commissioners” and “puppets,” with Walker as the “puppet master.”
“The puppets are the ones acting in violation of the law,” he said. “When the court holds them in contempt of court, that will be because they are doing what Gov. Walker wanted them to do.”
Esenberg said there are other interested parties that would be aggrieved if the public-sector union recertification elections didn’t take place — counties, municipalities, school boards and taxpayers that have realized savings through the implementation of Act 10 reforms, and government employees who don’t want to be part of the public-sector labor union.
“Public employees who want an opportunity to exercise their right to decertify under the law, although Colas says they don’t have that right, they weren’t parties to that litigation,” Esenberg said.
The Wisconsin Institute for Law and Liberty filed an amicus brief on behalf of some of those employees in a similar federal court case that upheld Act 10 in its entirety.
Colas’ next ruling could have broader implications for Wisconsin taxpayers.
If Colas holds Scott and Pasch in contempt of court and rules that government labor unions don’t have to recertify, it’s possible counties, municipalities and school boards could be forced to open up contract negotiations under the old collective bargaining rules.
If the government employer refused to negotiate, “an unfair labor practice charge would be brought to WERC for enforcement, at that point the WERC would be compelled to apply the broader standard in the scope of collective bargaining,” said Timothy Hawks, labor attorney at Hawks Quindel, S.C., in Milwaukee representing several unions including the Wisconsin Education Association Council and the American Federation of Teachers-Wisconsin.
Court records show the state will have until Oct. 4 to respond to the motion and states a hearing will be held Oct.18, if necessary.
“I think (Colas) knows the final decision here is not his. The Supreme Court is going to decide this, not him. I think because of that he may be reluctant to act. We’ll see,” Esenberg said.
Contact Ryan Ekvall at firstname.lastname@example.org or find him on Twitter @Nockian.