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WI Supreme Court will decide Act 10; ruling could ‘put an end to our long nightmare’

By   /   June 14, 2013  /   11 Comments

By M.D. Kittle | Wisconsin Reporter

MADISON – After two long years of legal limbo, the Wisconsin Supreme Court has agreed to take up the constitutionality of the state’s controversial Act 10, the law led by Gov. Scott Walker that gutted collective bargaining for most Badger State public employees.

One constitutional expert who has urged the court to settle the confusion surrounding the case, said a definitive ruling would “put an end to our long nightmare.”

The case of Madison Teachers Inc. v. Scott Walker is one of four high profile cases the high court has decided to review.

In its certification to the Supreme Court, the state District IV Court of Appeals wrote of the necessity of the high court’s ruling because of the “sweeping statewide effect on public employers, public employees, and taxpayers and because the need to clarify and develop law relating to associational rights and the home-rule authority of municipalities.”

The Wisconsin Supreme Court has agreed to take up take up the case of Act 10, the state's controversial law that gutted collective bargaining for most public employees in the state. A series of lawsuits and lower court decisions have muddied Act 10's legal waters.

The Wisconsin Supreme Court has agreed to take up the case of Act 10, the state’s controversial law that gutted collective bargaining for most public employees in the state. A series of lawsuits and lower court decisions have muddied Act 10’s legal waters.

A decision by the Supreme Court is expected to “clarify the effect of Act 10 and provide guidance to public employers and employees on how to approach collective bargaining,” according to a statement from the high court. “A decision also may help settle other pending cases spawned from Act 10 ad possibly reduce future litigation on some issues.”

Act 10 has been tied up in court challenges nearly since Walker signed the law that has come to define much of the governor’s first term in office.

The Republican-controlled Senate in March 2011 narrowly passed the bill, which ends collective bargaining over wages and demands most public employees (police and firefighters not included) to pay more for health insurance and contribute to their state retirement funds.

Act 10 was first challenged in Dane County Circuit Court a couple months later, when Judge Maryann Sumi overturned the law because she believes GOP lawmakers violated the state’s open meeting law in passing it.

The state Supreme Court stepped in in June 2011 and ruled on a 4-3 decision that lawmakers had not broken law in making the law.

In August 2011, Madison Teachers Inc., the union representing Madison public school teachers, filed the lawsuit against Walker, asserting Act 10 is a violation of teachers’ rights to Equal Protection, among other constitutional issues.

A month later Dane County Circuit Judge Juan Colas struck down most of the provisions of Act 10, as they related to municipal and county employees and teachers.

Colas then denied the state’s motion to stay the decision.

Along the way, the legal waters have been made murky by subsequent lawsuits and court decisions, including the U.S. Seventh Circuit Court of Appeals’ ruling earlier this year that upheld Act 10 in its entirety.

“Act 10 exhibits a rational belief that public sector unions are too costly for the state. The recertification process furthers this interest by imposing a recertification burden that impacts unions’ influence over employees who are less passionate about union representation,” the Chicago-based appeals court wrote.

Democrats, not surprisingly, stood with the court’s dissenting opinion that Act 10 may have been politically motivated and inherently unfair in its requirement to end automatic union dues for most public union employees, but not for all.

The state contends Act 10 is a proper exercise of authority because it affects only statutory rights, not constitutionally protected rights. According to the state officials, Act 10 does not “impose a single restriction on [public employees’rights] to speak, assemble or petition their government.”

Rick Esenberg, constitutional law expert and president of the Wisconsin Institute for Law and Liberty, a conservative advocate, said the court will provide a remedy for the confusion surrounding the law. Esenberg’s organization was among many filing amicus briefs urging the high court to settle the matter.

“There are local governments going around claiming Act 10 does not have to be complied with, although most local governments have resisted that temptation,” he said. The Institute for Law and Liberty is suing the Milwaukee Area Technical College, charging MATC illegally negotiated a labor agreement with an employee union.

“I think it’s a good thing the court is going to take the case up and finally put an end to our long nightmare,” Esenberg said.

John Matthews, executive director of Madison Teachers Inc., in an email to Wisconsin Reporter said the case is a matter of great importance to the “socially conscious people of Wisconsin, which was the first state to recognize the importance of public employees having a voice in the workplace.”

“What the Governor failed to recognize when, as he describes it, he dropped the bomb on public employees with Act 10, is that a collective bargaining agreement is no more than what the employer and it’s (Sic) employees think is best for both of them,” Matthews added.  “Act 10 stripped most public employees of that needed voice in the workplace, and in doing so treats some public employees differently than others.  That inequality violates the Constitution.”

Lester Pines, an attorney for the plaintiffs, told the Associated Press he wasn’t surprised the Supreme Court has agreed to hear the case.

“It raises significant constitutional issues that should be resolved in that court,” Pines told AP.

State Attorney General J.B. Van Hollen, charged with defending Act 10, in a statement expressed certainty in the constitutionality of the law.

“I look forward to the court’s prompt resolution of this litigation so that we can move forward,” he said.

But when will the Supreme Court rule?

That wasn’t clear Friday evening. There is nothing in the court’s filing noting a time frame for a decision.

Matthews said the court has provided the state 30 days to file a brief, and MTI 20 days after the state to issue its reply.

“After the matter being fully briefed by both the State and MTI in Circuit Court (before Judge Colas) and with the 4th Circuit Court of Appeals, I can’t imagine there is much more to say,” Matthews said.

In any event, Matthews said the case will not be heard in the Supreme Court’s current session, which ends June 28. The fall session begins in September, so the matter likely will not be heard until September or October, and a decision rendered a few months after that, he speculated.

Esenberg said he’d like to see a ruling right away, but he expected briefings over the summer with arguments likely in the fall. A ruling, he said, may not come down until this time next year. With a deeply politically divided court, split in a 4-3 conservative majority, a decision could take some time to arrive, Esenberg said.

Contact Kittle at [email protected]


M.D. Kittle is bureau chief of Wisconsin Watchdog and First Amendment Reporter for Watchdog.org. Kittle is a 25-year veteran of print, broadcast and online media. He is the recipient of several awards for journalism excellence from The Associated Press, Inland Press, the Wisconsin Broadcasters Association, and others. He is also a member of Investigative Reporters & Editors. Kittle's extensive series on Wisconsin's unconstitutional John Doe investigations was the basis of a 2014 documentary on Glenn Beck's TheBlaze. His work has been featured in Town Hall, Fox News, NewsMax, and other national publications, and his reporting has been cited by news outlets nationwide. Kittle is a fill-in talk show host on the Jay Weber Show and the Vicki McKenna Show in Milwaukee and Madison.

  • wiprof

    Gee, I wonder how Shirley and Anne will vote.

  • Shoes

    The law discriminates against certain groups of public employees just as the Republican Party discriminates against everyone that doesn’t believe in their causes. The new party of discrimination. By the way the party is lead by mostly white males.

  • wiprof

    forced unionization discriminates against certain organizations. On what basis can someone be required to join a union, but not a trade association as a condition of employment? On what basis can an agency or company be required to take dues out employees’ wages for unions, but not for membership in professional organizations? And the last time I looked, the Dems were run by white males. Your selective outrage betrays your hypocrisy.

  • phillyfanatic

    Libs always go to the leftist courts to over-ride common sense and the votes of the public concerned. Their ideas usually lose in the public arena so they use the courts to offset our true small r , republican democracy. The hatred of whites by liberals is so sick nowadays that they are quite willing to see America as a 3rd world tyranny just to nail ole whitey. What a sick ideology. And btw, God bless Walker. I know libs hate God so that too should infuriate them. And if the Court rules against them, they still will curse the light.

  • Shoes

    This country was formed to make a more perfect union. Union is the strength of this country. A few of you need to move back to England and serve the king and queen. Goodbye.

  • Luonne Dumak

    Did Matthews mean “Socialist conscious people”? Did he say Act 10 is a collective bargaining agreement is no more than what and is employees & employers is best for both of them. News flash’ the employers are the TAXPAYERS. We have no say in the matter when the Unions load up the bargaining Committees with their own ilk. Unions don’t belong in Government,if you want to belong to a Union go work in the private sector. People should not be forced to pay dues to have a job,. Wi. should be a right to work State. It is not the Goverments job to collect union dues, if people want to pay dues write a check every month. Unions have always been an arm of the Communist Party.

  • Scott Patchin

    …..and a few of you need to give up your cushy government jobs and become part of the private sector for a walk in our shoes….Shoes.

  • arniek

    I think wiprof should have said Shirley-Anne

  • Shoes

    I do work in the private sector. Own my own business. Support union contracts. Like many Republicans you assume. And when you assume you make an ass-of-u-me. Walk in my shoes once.

  • Anne D

    So Luonne Dumak, what about the rest of the public sector employees? Why can their voices be heard while others’ can not? Is that equality? Could it be that their unions support Walker? Of course this is politically motivated. Do you also support Walker’s belief that DNA should be collected for people accused of crimes?

  • Anne D


    So, do you believe that ALL public sector employees should be right to work? Including the unions that use their money to support republican candidates? Or, that only SOME public sector employees should have a voice while others don’t?!?!?