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Act of confusion — Judge's decision on Act 10 creates confusion, concern

By   /   September 17, 2012  /   10 Comments

By M.D. Kittle | Wisconsin Reporter

MADISON — A Dane County judge’s decision to toss out Wisconsin’s controversial collective-bargaining law has local governments wondering what’s next, and legal experts scratching their heads.

As state Attorney General J.B. Van Hollen on Monday prepared to appeal Dane County Judge Juan Colas’ ruling and seek a stay of its effects, local administrators were scrambling for answers.

A Dane County judge’s decision making Wisconsin Act 10 ‘null and void’ is raising a lot of questions and some anxiety from local governments.

Platteville City Manager Larry Bierke declined to comment on the judge’s order, but said it arrives just as municipalities are preparing their budgets.

“We have made significant adjustments. If these are undone, we will have to make significant adjustments again,” he said.

Pat Cannon, president of the Wisconsin City-County Manager Association, said budgets will be due to elected officials in the coming weeks, with votes typically slated for early to mid-November.

“This thing opens a whole can of questions from a budgeting aspect,” he said of the judge’s decision.

Local governments, he said, will have to decide to budget with collective bargaining in mind. They may have to tap into reserve budgets or cut programs and jobs to cover the contingencies of increased wage and benefit costs. Act 10, led by Republican Gov. Scott Walker and the Republican-controlled Legislature in the most-recent session, limited wage negotiations to the rate of inflation, and ended negotiations on benefits.

Municipalities, counties and school districts cannot raise tax levies without putting the question to voters.

“We, by law, have to have balanced budgets and we can’t borrow for operating funds,” Cannon said. “There’s not many tools in the tool shed for local government to handle this sort of thing.”

“The rules of the game have shifted here.”

The ruling does not impact collective bargaining at the state level, although other lawsuits are pending.

Meanwhile, it appeared Madison Teachers Inc., the union that brought the lawsuit , was chomping at the bit to renew negotiations on a two-year contract that would take effect starting July 1, 2013, according to the Wisconsin State Journal.

“There is time now where it’s legal for the school district to bargain with us,” MTI’s executive director John Matthews told the newspaper.

Unions and Democratic Party leaders rejoiced Friday when Colas’ handed down his ruling that Act 10, which gutted collective bargaining for most public employees, violated the workers’ constitutional rights to free speech, equal representation and free association.

The celebration might be premature exuberance, however.

Van Hollen said he will appeal the ruling and ask Colas to stay his decision while higher courts take up the case.

“With regards to the stay, one of our stronger arguments is the confusion and the impact (the judge’s ruling) has on local governments,” Van Hollen said.

It is unlikely that Colas will stay his decision, but Van Hollen sounds confident the state Court of Appeals will while it sorts out the case. Appeals, arguing legal precedent questions, could immediately move the matter to the state Supreme Court, which took up part of Act 10 not long after Walker signed the law in 2011. But contrary to some media reports, the court ruled on the legality of the making of the law, more so deciding a question on the state’s open meeting law, not the constitutionality of Act 10 itself.

The Supreme Court remains divided but holds a narrow conservative majority, arguably more apt to reverse Colas’ decision and uphold Act 10.

Rick Esenberg, president of the public interest law firm the Wisconsin Institute of Law and Liberty in Milwaukee, said chances are good that the judge’s decision will be stayed, and he sounds confident that Act 10 eventually will be upheld.

Colas’ ruling, Esenberg said, doesn’t properly appreciate the distinction between the constitutional right to freely associate and the statutory privilege to have a union as an exclusive agent for collective bargaining.

“Act 10 doesn’t interfere with the ability of public employees to speak,” he said. “The union can say whatever it wants to say, advocate for whatever it wants to.” That point, arguably, has been driven home by the union-led protests, demonstrations, and the unsuccessful campaign to recall Walker, Lt. Gov. Rebecca Kleefisch and several Republican state senators.

Esenberg and Van Hollen, like Cannon, acknowledged the judge’s decision raises a lot of unanswered questions about when and how collective bargaining would resume.

Ultimately, Van Hollen said, the constitutional validity of Act 10 must be decided by a panel of judges elected by Wisconsin voters, not one judge elected from voters in one county.

Conservatives have castigated Colas as an “activist judge,” striking down a law passed and signed by lawmakers and a governor duly elected by Wisconsin voters.

Van Hollen said a lot of aspersions have been cast about concerning the political preferences of judges, and he “tends not to go there.”

“I am giving Judge Colas the benefit of the doubt that he believes this is an appropriate decision,” Van Hollen said. “He’s one person. We collectively in the Department of Justice respectfully disagree with that opinion.”

Contact Kittle at [email protected]


  • Mary

    SHAME, SHAME, SHAME on MTI!! Of course the democratic party is ecstatic about this ruling……they don’t care the MAJORITY of Wisconsinites voted AGAINST the unions demands. The majority of Wisconsinites are the only ones with any intelligence! It is mind boggling that a Dane County judge can make a decision for the whole state and STEAL votes away from the people of WI.

    I have lost respect for union teachers at this point. I feel bad for the people that will be laid off because of ACT 10 reversal. I’m upset with the increase in property taxes that Wisconsinites will once again have to endure in such tough times, especially the elderly on fixed incomes wanting to stay in their homes. And I’m angry that the greedy public sector unions are taking this state backwards to financial hell.

    Senate Majority leader Mark Miller and his merry band of democrats think this is justified? Wait until his next election bid comes around…bye, bye! Their TOTAL lack of respect for how the people in this state have voted on Act 10 is noted. When will they ALL stop whining like spoiled brats…..grow up and play by the rules! That goes for the unions and their members too.

    And if families with children in public schools think this is so great here’s a proposal……anyone with children in public school should be the ones paying the school taxes NOT the rest of the people of this state. You want all the newest computers, fancy gymnasiums, pay raises for teachers, 3 school served meals a day, etc, you all should pay for it out of your own pockets! Leave the rest of us alone.

  • Brad

    There is no confusion here. The judge did his job. In Dane county, otherwise known as the twilight zone, his job is to abuse judicial authority, and issue rulings that make the lefty radicals happy. The judge exposed himself as nothing more than a lefty political hack, which in Dane county, protects his job. This judicial review fest, that we put up with, shouldn’t be happening. Why? Because it gives legislative power to the courts. Legislative power belongs to the legislature, including the decision on whether or not a law is constitutional. But, this judicial lawlessness, is the hand we’ve been dealt, and so the lefty circus continues. As for local school boards and municipalities, just stick with your contracts until this mess is straightened out. If the unions don’t like it, that’s just an unintended benefit.

  • Cleveland Lee

    It’s great to see that there is a judge in Wisconsin applying common sense with constitutional law. Wisconsin Department of Justice could not recognize “JUSTICE” if it hit them on the head.

    Our history shows us that there have been many laws passed by the people signed into law by law makers, governors and supported by presidents, yet they have been found to be incomplete, invalid, unconstitutional, inhuman and liberty stolen without recompense.

    Collective bargaining is a tool that allows all parties involved in challenging disputes to think before acting, it is healthy for the mind, body and soul resulting in a better nation. Sometimes al l we need is one voice crying out in the wilderness. In this case Judge Colas maybe the crier Wisconsin needs.

  • Oh please, I’m not a teacher but know alot of hard working ones that do a great job. It’s amazing how all these people such as Mary have lost respect for teachers and yadda yadda ya. Many people bitching are mad because they didn’t spend 5 to 6 years in college and continually have to re-educate themselves for wages that are not that great. After working the first 3 or 4 years to try to pay off some of your college tuition that was required before the idiot walker took over and made the public workers the enemy and slipped all his rich buddies huge breaks under the radar as all the focus was on those bad people called public workers. Hey don’t worry soon you’ll see us all getting paid 8 dollars an hour with no benefits. That’ll give people something to work harder for and to try to better themselves. I have nothing but respect for the good teachers and in any business you’ll have some sluff offs. I’m sure some of these negative people on teachers could educate their own kids much better.

  • bea

    first and foremost…. BALONEY!

    second… there is no “common sense” being used in this matter which was, and should be, over and done with already (at least since June 5th when WISCONSIN said yes to Gov. Walker for the second time in 15 months) !!

    Finally, Cleveland Lee, you have one thing correct:

    more “liberal thinkers” ( judge Colas and apparently yourself) who are CRYING AGAIN in the Wisconsin wilderness !!!

    PS: hope you like your taxes being raised to your roof line…

    ARE you one of the many “victims” of society who don’t work for a living ?? … OR are you one of the teachers who want all my family’s income to pay for your EASY STREET ?

  • Roy

    Cleveland Lee: Apparently you think all Federal employees have been treated like trash all these years. We all know there are no collective bargaining privileges for Fed employees, and yet they don’t quit out of protest, or riot.

    You think this judge is a crier Wisconsin needs? Come November 7th we’ll have more criers than we can stand.

  • Brad

    If they are smart enough to be negative on the crybaby teachers, then they are smart enough to easily outperform them. And they do.

  • Brad

    The judge, so called, abused his power to strike down a law that has already been upheld by the courts. He’s not upholding the law. He’s a lefty radical hack engaged in lawlessness. That’s it.

  • bea

    Big T

    I too have respect for the teachers who do an excellent job TEACHING what is NOT INDOCTRINATON TO THE BIG GOVERNMENTS around the world. I believe in getting paid for doing my job… not because I can sit and get paid without the fear of being fired because of misguided union contract that define tenure. I’ve had to deal with teachers who sat and let my children teach themselves… who came home and ask me to help them with homework which their teacher refused to teach or explain beyond the first ten min of class (even to me or my husband when we had a face to face conference with those kind of teachers) !!

    And by the way… I WORKED $7-$9 hr jobs to pay for my college tuition as I raised my family… I managed to complete my master’s in 7 yrs ( a little longer than some I suppose)… and

    presently am working on my doctorate ( in education)…thankfully the family has grown up… ALL THE WHILE I WORKED that $9 hr job to pay for those college credits!! I have had to sacrifice a lot of time & effort… many things I wanted I didn’t get, and couldn’t go places on vacation …just in order to achieve this goal. ALL WITHOUT GOVENERMENT BENEFITS AND WITHOUT GOVERMENT ASSISTANCE! It was pure and unadulterated sweat and sacrifice.

    So please… your angry verbage against Gov. Walker is without merit!

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