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.
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 firstname.lastname@example.org