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In 5-2 ruling, Supreme Court issues final word on Act 10
state supreme court | major rulings

In 5-2 ruling, Supreme Court issues final word on Act 10

More than three years after its passage sparked massive protests that jammed the Capitol Square, the state Supreme Court upheld the constitutionality of a divisive state law that sharply curtailed the collective bargaining rights of most public workers.

In upholding Gov. Scott Walker’s signature piece of legislation, the court handed the governor a major victory three months before he seeks re-election. The decision also cast doubt on the validity of several union contracts negotiated after a lower court found the law unconstitutional.

In its 5-2 decision, the court said public workers in Wisconsin do not have a constitutional right to bargain collectively.

“We reject the plaintiffs’ argument that several provisions of Act 10, which delineate the rights, obligations and procedures of collective bargaining, somehow infringe upon general employees’ constitutional right to freedom of association,” Justice Michael Gableman wrote for the majority in a 90-page decision.

“No matter the limitations or ‘burdens’ a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The First Amendment cannot be used as a vehicle to expand the parameters of a benefit that it does not itself protect.”

Justice Ann Walsh Bradley dissented, joined by Chief Justice Shirley Abrahamson.

Justice N. Patrick Crooks agreed with the majority, but in a brief concurring opinion he wrote that while the law is constitutional, individuals should have the right to organize and bargain collectively, long a part of Wisconsin’s progressive heritage.

“As thoughtful people from across the political spectrum and around the world have long recognized, collective bargaining benefits workers, employers and society itself,” Crooks wrote. “Although Act 10 does not violate either the United States constitution or the Wisconsin constitution, it erodes longstanding benefits to both public workers and to public employers.”

In a statement, Gov. Scott Walker called the ruling a victory.

“Act 10 has saved Wisconsin taxpayers more than $3 billion,” Walker said. “Today’s ruling is a victory for those hard-working taxpayers.”

Mary Burke, Walker’s likely Democratic opponent in the November election, said she supports the right of workers to bargain collectively. While she said it was fair to seek worker concessions in contributions toward health care and pensions, she added they should have been bargained with unions.

Lester Pines, attorney for Madison Teachers Inc., a plaintiff in the lawsuit, said the ruling did not come as a surprise. While the law was touted as a means to save taxpayer dollars, its true intent was “to cause municipal public employee unions and state public employee unions to go away,” he said.

The law prohibits most government employees from bargaining on anything other than base wages, and then only up to the rate of inflation; requires unions to hold annual recertification votes; and prohibits the state and municipalities from deducting union dues from paychecks.

Public safety employees, which include some but not all police unions, kept the rights they had before the law took effect.

Several key provisions of the law were ruled unconstitutional in 2012 by Dane County Circuit Judge Juan Colas, who found that they violated workers’ constitutional rights to free speech and freedom of association. He also said the law violates the U.S. Constitution’s equal protection clause by creating separate classes of state workers who are treated differently and unequally.

A federal appeals court in January 2013 upheld other portions of the law that had been overturned by U.S. District Court Judge William Conley. Those pertained to the collection of union dues through payroll deductions and the annual union recertification elections required under the law.

Justices divided

In her dissent, Bradley wrote that the majority opinion sidestepped the issues at the heart of the dispute, focusing on whether there is a constitutional right to bargain collectively instead of whether Act 10 infringes on the freedom of association rights of public employees to organize.

She wrote that the unions’ argument is “based on the well-established premise that there is a constitutional right to organize as a collective bargaining unit,” which the U.S. Supreme Court has found to be a fundamental right.

Instead, Bradley wrote, the majority “pivots to a different issue advanced by the state and then analyzes that issue.” By doing so, she wrote, “the majority avoids the actual argument advanced before this court.”

Act 10 “discourages organizing as a collective bargaining unit by increasing its cost,” Bradley wrote, because it requires annual recertification elections and eliminates the requirement that all members share the cost of providing the union’s services.

“By making membership unduly expensive,” Bradley wrote, “these Act 10 provisions collectively infringe on the associational right to organize. There is no doubt that these provisions act to discourage membership.”

But Gableman, writing for the majority, said it is “undisputed that collective bargaining is not constitutionally protected. Indeed, Wisconsin is under no constitutional obligation to collectively bargain at all.”

The dissent’s accusation that the majority dodged the question “is misplaced,” Gableman wrote. “Act 10 certainly presents meaningful difficulties for certified representatives, but these difficulties have no bearing on our analysis of the act’s constitutionality.”

Still, wrote Gableman, “Represented municipal employees, non-represented municipal employees and certified representatives lose no right or ability to associate to engage in constitutionally protected speech.”

“Act 10 merely provides general employees with a statutory mechanism to force their employer to collectively bargain; outside of this narrow context, to which plaintiffs freely concede public employees have no constitutional right, every avenue for petitioning the government remains available.”

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