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Tuesday, June 25, 2024 | Back issues
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Wisconsin law restricting collective bargaining for public employees is unconstitutional, unions argue

Republican defenders say the law has saved Wisconsin billions of dollars. Liberals decry it as politically motivated union-busting.

MADISON, Wis. (CN) — Unions in the Badger State saw their first day in court on Tuesday, as they seek to get rid of a Wisconsin law that slashed collective bargaining rights for public-sector employees. They say the 2011 law unconstitutionally discriminates against certain unions and employees for political reasons.

In a lawsuit in November, the Abbotsford Education Association, the local chapter of the Service Employees International Union and five other unions argue that the law — commonly known as Act 10 — should be permanently blocked because it violates the Wisconsin Constitution's equal protection clause.

The plaintiffs say the law brought about a sea change in Badger State labor relations. Among other things, it divided public employees into two groups: “public safety” employees, a category which includes most but not all firefighters and police, and “general” employees, which includes almost everyone else. Based on these categories, Act 10 allows for different bargaining rights for the two groups.

There is no rational basis for this discriminatory classification, Jacob Karabell, a lawyer with the progressive Washington-based Bredhoff & Kaiser firm who is representing the unions, said in court on Tuesday. Act 10 caused so-called general public employees to be “stripped of effectively all of their bargaining rights” while leaving those rights in place for the "public safety" group, he said.

Karabell's use of the term "rational basis" refers to a well-worn judicial test that examines whether a law is adequately connected to a legitimate state interest.

Karabell argued the classifications cannot stand up to that legal scrutiny because the “public safety” group included state motor vehicle inspectors but not police at the state capitol building or the University of Wisconsin. The drafters of the law did not have a rational reason to construct the classifications that way, gutting only some employees' and unions' bargaining rights but not others', he argued.

Instead, Karabell said it was "pretty obvious” that the law’s creators were trying to favor groups that endorsed the 2010 campaign of then-Republican Governor Scott Walker and punish groups that did not. In defending the law, Walker has repeatedly cited union-busting politicians like Ronald Reagan, who famously fired more than 11,000 striking air traffic controllers in 1981.

Act 10 largely eliminated collective bargaining for the "general" group. It also prohibited employers in this group from deducting union dues directly from members’ paychecks.

The law has survived multiple legal challenges under a variety of theories, including two federal lawsuits that reached the Seventh Circuit and a state court action that failed at the Wisconsin Supreme Court.

Passage of the law sparked nationwide headlines and controversy. Protests spearheaded by liberals and labor advocates drew tens of thousands to Madison and left the Wisconsin state capitol building occupied by demonstrators for weeks. Fourteen Democratic state senators also fled across state lines to Illinois to block a vote on the bill — but those efforts ultimately failed. Act 11 was signed on March 2011 and went into effect that June.

Representing state lawmakers in court on Tuesday, lawyer Misha Tseytlin said the goal of Act 10 was to save money. The former state solicitor general under Walker, Tseytlin now works for the Chicago-based Troutman Pepper firm and frequently litigates on behalf of the Republican-controlled Wisconsin Legislature.

Tseytlin argued that — under precedent and constitutional provisions — the court cannot get into the granular reasons for why lawmakers crafted the employee classifications how they did. Doing so would improperly turn the court into a kind of “super-legislature," he said.

Still, Tseytlin did note that one reason for the classifications’ design was to prevent major disruptions and safety issues should any of the groups affected by the law’s changes go on strike.

Representing the nominal defendants in the case, including the Wisconsin Employment Relations Commission and state Department of Administration, Assistant Attorney General Steven Kilpatrick likewise defended the law as passing the rational-basis test.

Like Tseytlin, he said the law safeguarded against labor disruptions. He noted that many courts have “declined to line-draw” in the way he said plaintiffs here wanted the court to do.

Presiding over the case, Dane County Circuit Court Judge Jacob Frost wrangled with what his role should be in resolving the dispute — though he seemed resistant to the idea that he could not question the law’s rationality without stepping on the Legislature’s toes.

The judge struggled with why the classifications treat capitol police and conservation wardens differently from state troopers and firefighters when the jurisdictions and duties of those offices can be similar.

Simply saying that “because [the Legislature] did it, it’s lawful” was not good enough, he said. He wondered aloud if the law could be considered rational if the legislators defined the classifications by “cherry-picking” without explanation.

At the end of arguments on Tuesday, Frost said he would issue a decision in the near future. No matter how he rules, though, the lawsuit is almost certainly destined for the Wisconsin Supreme Court.

Justice Janet Protasiewicz, a liberal, participated in protests against Act 10 and has said she might recuse herself from litigation over it. Justice Brian Hagedorn, a conservative, has made no similar public statements, though he was once Walker’s chief legal counsel and had a role in drafting the law.

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Categories / Courts, Employment, Politics

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