How ironic.
On Tuesday, Gov. Scott Walker met with schoolchildren in De Pere as part of his statewide tour celebrating the 225th anniversary of the U.S. Constitution.
Yet days earlier, Dane County Circuit Court Judge Juan Colas found that Walker’s signature piece of legislation, the collective bargaining-gutting Act 10, violates provisions of the U.S. and Wisconsin constitutions.
After the decision was made public, Walker immediately took aim at Colas, calling him a “liberal activist judge” who wants to “take away the lawmaking responsibilities of the Legislature and governor.”
Attorney General J.B. Van Hollen has asked that Colas’ decision be stayed on appeal to prevent it from going into effect immediately. Van Hollen’s statement announcing his appeal didn’t focus on the constitutional questions at the heart of Colas’ decision—whether Act 10 violates represented employees’ rights of free speech and association and equal protection under the law.
Rather, Van Hollen took an explicitly policy-based view of the legislation, saying, “Act 10 addressed real and significant financial problems faced by local governments. It makes no sense to force a return to a broken system before the appellate process is completed.”
The case will likely wind up in the state Supreme Court, either after an appellate court takes up the matter or directly. The majority of the court’s current makeup favors conservative or Republican-backed bills, such as the state’s challenge to the open meetings law. In that case, the conservative majority decided that the Legislature didn’t have to follow its own law requiring a 24-hour notice for public meetings. Therefore Act 10, initiated with less than a two-hour notice, was ruled to have been properly enacted.
What Colas Decided—And Didn’t
Unions and policy-makers around the state are still figuring out the impact of the decision on the rights of represented workers, and whether those workers can return to the bargaining table.
Colas’ decision doesn’t say anything about how the state will move forward in a post-Act 10 world.
The decision did not address, for example, whether unions can negotiate new contracts that encompass wages, benefits and working conditions. Will the old contracts remain in effect? Can affected workers ask to be reimbursed for wages and benefits they’d lost under Act 10?
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Colas’ 27-page document does not shed light on those concerns, since it is not really the court’s business; however, the decision did what the court should do, which is question whether the act is constitutional. The decision states how Act 10 violates the constitutional rights of teachers, city employees and county employees who are union members:
* Freedom of speech and freedom of association: Colas wrote that “it is undisputed that there is no constitutional right to collective bargaining.” That said, he wrote that “when the government elects to permit collective bargaining, it may not make the surrender or restriction of a constitutional right a condition of that privilege.”
He found that requiring union members to give up their rights to negotiate for wage increases greater than the cost of living—while rewarding non-union members by allowing them to negotiate for pay raises—is a burden on the represented employees.
But is it constitutional, or not? Colas wrote that the state could infringe upon the union members’ freedom of speech and association, but only if the state could show that the burden was outweighed by “the evil it seeks to prevent.”
And there the state’s case fell short, Colas found.
“Without any evidence or argument that the infringement serves to prevent an evil in the operation of the bargaining system created by the statutes, the court must find the infringement to be excessive and to violate the constitutional rights of free speech and association,” Colas wrote.
* Violation of equal protection: Colas also found that Act 10 violated the represented workers’ constitutional right to equal protection under the law by creating two classes of municipal employees—those who are represented by unions and those who are not—who are treated differently under the law.
Act 10 does violate that right, Colas wrote. One class of employees can negotiate for pay raises and other workplace benefits, while the other cannot.
Violating Milwaukee’s Home Rule Rights
Act 10 rewrites the rules on pension contributions throughout the state. But its attempt to change the city of Milwaukee’s pension system violates the city’s home rule protections, Colas found.
The home rule in the Wisconsin Constitution grants municipalities the right to determine their own local affairs; the state Legislature can only affect laws that are of a statewide concern and uniformly affect every city or village.
Colas found that Act 10 unconstitutionally interferes with the city’s pension system, Milwaukee’s Employee Retirement System (ERS). Milwaukee’s ERS was set up in 1937 to be a matter of local affair, and under its provisions it requires the city to pay the employee share into the ERS. Act 10 prohibits the city from doing so—unconstitutionally, Colas decided.
Colas isn’t alone in this matter. In early 2011, Milwaukee City Attorney Grant Langley warned Mayor Tom Barrett that the collective bargaining bill that became Act 10 violated Milwaukee’s home rule rights. But the city didn’t sue to assert its constitutional rights. Rather, in this case, its employees did—and won.
In addition, Colas wrote that Act 10’s interference in Milwaukee’s ERS improperly impairs contracts.
“The bar on impairment of contracts is based on the principle that the government may not alter the terms that parties have agreed to in a contract by subsequent legislation unless there is a weighty justification,” Colas wrote.
The state didn’t have a “weighty justification,” and therefore it couldn’t change the terms and conditions of Milwaukee’s pension system.
Paul Secunda, associate professor of law at Marquette University, said that while Colas’ decision isn’t backed by a lot of case law relating to collective bargaining rights, his case regarding Milwaukee’s home rule rights and contract law is “on firmer ground.”
“Act 10 not only acts upon the collective bargaining contract, but it also kind of voids or seeks to void provisions that exist in the city’s charter ordinances—outside of the contract,” Secunda said. “So in that way it’s different than what was just occurring with collective bargaining for other public sector employees.”
