Wisconsin Judge Restores Collective Bargaining Rights to Some Public Employees

Act 10 was  landmark legislation for former Wisconsin Governor Scott Walker (right). In July, Judge Jacob Frost ruled unconstitutional the parts of Act 10 that  limited the collective bargaining rights of public workers on the ground that it treated police, fire fighters, and public safety workers differently from other public workers. The state presented no rational basis for the distinction. This aspect of Act 10 violated Wisconsin’s equal protection clause.

Yesterday, Judge Frost issued his final judgment in the case, Abbotsford Education Association v. Wisconsin Employment Relations Commission. The Wisconsin Legislature, which intervened in the case, urged the court to limit itself to a declaratory remedy, arguing that the court was without power to enjoin unconstitutional laws. The court found no authority supporting the Legislature’s position. The court’s finding that parts of Act 10 are unconstitutional “requires the State and its officers to not enforce those unconstitutional portions of the law.”

The Legislature next proposed that the court merely strike the Act’s constitutionally offensive definition of “public safety officer,” leaving the term undefined and leaving the rest of the law in place. The Legislature proposed that the defendant agency and the courts could then supply a definition for the term. The court refused to do so, finding that neither it nor the agency had the authority to craft a definition. It was for the Legislature to come up with a definition that would pass constitutional muster, and it has not done so. The court then proceeded to strike the following sections of Act 10 as unconstitutional: 2011 Wisconsin Act 10 §§ 58, 95, 168–169, 182, 210, 211, 213, 215, 217–223, 225, 227, 230–236, 238–241, 242, 244–247, 250–252, 255, 259-262, 265, 267, 270-271, 273, 276, 283-284, 288–290, 293–296, 298-299, 303, 305–306, 308–312, 314–315,
319–322, 324–334, 366, 387-388. 

In the remainder Judge Frost provides explanations for his decision with respect to certain provisions, the constitutionality of which was the subject of disagreement between the parties. Judge Frost then proceeded to consider plaintiff’s request that the court strike sections of Act 55, which relate to provisions of Act 10 that were struck. Judge Frost granted plaintiffs request as to Act 55., granting plaintiff’s motion on the pleadings.

Rachel Ryan and Anthony Dabruzzi, writing in Spectrum News report that Former Governor Scott Walker was not well-pleased. He took to Twitter to express his outrage, denying that collective bargaining is a right and calling it an expensive entitlement. He suggests that the political branches, rather than the courts should make the law.  I trust that the Justices who joined the majority in cases like Heller, McDonald, Bruen, and Shelby County v. Holder are taking note.