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Judge won't stay his right-to-work ruling, which heads to appeals court
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Judge won't stay his right-to-work ruling, which heads to appeals court

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A Dane County judge on Monday declined to put on hold his ruling barring enforcement of Wisconsin’s right-to-work law, which he found to be unconstitutional earlier this month.

Circuit Judge William Foust, who ruled on April 8 that the law unconstitutionally takes property from unions without compensation, said that he will continue to bar enforcement of the law while the state Department of Justice appeals Foust’s decision.

“I think the factors weigh in favor of maintaining the decision,” Foust said. “I don’t think they weigh in favor of a stay pending appeal.”

DOJ has already appealed the ruling to the state District 3 Court of Appeals, based in Wausau. Attorney General Brad Schimel said in a statement that he is “disappointed” by Foust’s ruling and that DOJ plans to seek a stay from the appeals court, “where we feel confident this law will be upheld.”

In the past the case would have gone to District 4, based in Madison, but a recent change in state law allows those filing appeals to choose the district where they wish their appeal to be heard.

DOJ argued in a court filing last week that allowing continued enforcement of the right-to-work law won’t substantially harm labor unions, and that similar laws have benefited 25 other states.

In a response last week, the unions argued that the purpose of the law ostensibly was to enhance Wisconsin’s business climate, but that it’s being done at the expense of a small proportion of the state’s working population, the fewer than 10 percent who are union members.

“This attempt to place the entire burden of the law upon a small group further weakens the defendants’ showing of harm,” the unions wrote in their brief.

The right-to-work law prohibits unions and employers from entering into agreements that require all employees to pay fees to join a union, either in the form of membership dues or “fair share” payments for those who opt out of joining a union but are still represented by it.

The AFL-CIO and two other private sector unions sued the state, arguing that state and federal laws require unions to provide collective bargaining services to all employees in a represented workplace, regardless of whether they pay union dues. They argued that made the state’s right-to-work law an illegal “taking” of their services.

In arguments before Foust on Monday, Assistant Attorney General Steven Kilpatrick argued that a stay was in the public interest, which is in maintaining the status quo under the law that the Legislature enacted. He said that the state would suffer irreparable harm if Foust does not grant a stay putting on hold his decision barring the enforcement of the right-to-work law.

Kilpatrick also argued that laws enacted by the state have the presumption of constitutionality.

Frederick Perillo, arguing for the unions against the stay, called that argument “breathtaking.” Theoretically, he said, that argument could mean that the state could pass obviously discriminatory Jim Crow laws and defend them as having the presumption of constitutionality.

He also argued that the state hadn’t shown any evidence that it would be harmed by barring enforcement of the right-to-work law, and instead it’s the unions who are being harmed on an ongoing basis by having to provide services to “free riders.”

On balance, Foust said, he said he believes that the harm is less to the few current nonunion members who would be made to pay dues because of his decision and more to the unions who have had to foot the bill for them for the past year, for the foreseeable future if he stayed his decision.

“This decision boils down to something as simple as ‘there is no free lunch,’” Foust said. “There is no right to be a free rider.”

Perillo called Foust’s ruling “the right decision.” Wisconsin AFL-CIO president Phil Neuenfeldt said the union is pleased with the decision.

“Rather than respecting the constitution,” Neuenfeldt said in a statement, “Gov. Walker and Attorney General Brad Schimel are trying every legal maneuver in the book to advance their own partisan agenda and deny workers their right to a meaningful union.”

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