Did Republicans Blow It?
The court decision striking down collective bargaining law exposes obvious constitutional problems with it.
When Gov. Scott Walker first proposed the law to restrict collective bargaining for public employees, most Democratic and Republicans were stunned by the broad sweep of the law. It was a revolutionary document.
Given this, you’d think the Walker administration would have sought a legal opinion on the constitutionality of the bill from, say, the Wisconsin Attorney General. The public policy goal of slashing public employee wages and benefits might have been accomplished with a bill written in many different ways. So why not make sure the one you have written will pass muster with the courts?
The Walker administration never did this. Precisely who conceived the bill’s approach, where it came from, has been shrouded in mystery. Walker’s not a lawyer. (He didn’t even graduate from college.) Was there a lawyer driving this train?
In the wake of its passage, some liberals blamed the conservative American Legislative Exchange Council, which has created ready-made bills in many areas, but Mary Bottari, a staff member of the liberal Center for Media and Democracy, who analyzed the influence of the group on Wisconsin, found there was “no ALEC bill that mirrors Walker’s proposal.” I’ve heard of no other state with a bill written quite like Wisconsin’s. Perhaps there are constitutional reasons for this.
Which brings us to Friday’s decision by Dane County Circuit Court Judge Juan Colas to overturn the law. The court looked at six constitutional challenges to Act 10 and found two lacked merit and struck the law down on four other issues.
Perhaps the most convincing part of the decision is its conclusion that Act 10 unlawfully interferes with the City of Milwaukee’s pension plan. The city’s Employment Retirement System was created by state law in 1937 and was amended in 1947 to allow a “city of the first class” (Milwaukee) “the largest measure of self-government with respect to pension annuity and retirement systems.” The state had no more involvement in regulating this system for 64 years. The city invests in its own pension fund and has a different vesting schedule and different benefits for employees than the state does. When the legislature has written laws changing retirement benefits for state employees over the years, it has had no impact on Milwaukee.
Back when Act 10 was proposed, Milwaukee City Attorney Grant Langley issued a 15-page opinion concluding the law was unconstitutional. “From my perspective, there is no wiggle room,” he said. Langley said that eight other city lawyers with expertise on pension law carefully researched the law and came to the same conclusion.
Langley’s opinion said the bill interfered with the city’s long established home-rule authority over its pension plan and violates its employees’ contractual rights. Colas came to exactly the same conclusion by first, noting the home rule authority gave Milwaukee control over its pension plan and second, noting that Act 10 impaired the city’s contract with employees, which promised to pay their share of pension contributions and had language prohibiting “retroactive impairment.” This is “a contractual obligation for the city,” Colas wrote, which Act 10 violates by making city employees pay 5.5 percent.
Colas also ruled that Act 10 infringes “upon the right of free speech and association guaranteed by both the Wisconsin and United States Constitution” in two ways. First, by treating union and non-union employees differently. Represented employees, he wrote, may enjoy their rights of association in a union “only if they give up the right to negotiate” wages and their right “to receive wages greater than the cost of living.” But non-union employees “are rewarded by being permitted to negotiate for and receive wage increases without limitation.”
A second infringement, Colas ruled, is that “Unions are required to be recertified annually, even if there has been no request for recertification and the full costs of the election are borne by employees in the bargaining unit who are members of the union.” This statute burdens the exercise of free speech and association and rewards the abandonment of that right.
Colas also ruled that the law violates the equal protection clause of the constitution, once again in two ways. First it “treats members of a similarly situated class” (government employees) unequally, by giving different treatment to union and non-union employees. Secondly, it treats government employees unequally by prohibiting payroll deduction for union dues of general municipal employees but allowing it for public safety (police and fire) and transit labor organizations.
This is a fairly sweeping decision, but the plaintiffs only represented teachers and Milwaukee employees. It therefore has no impact on state employees, but it opens the door to a similar suit making the same arguments on behalf of state employees. It also opens the door to federal suits on the same issues, as Colas found the law violated both the state and federal constitutions. In short, there could be a lot more litigation on this case. Lester Pines, the attorney for the plaintiffs, says he is convinced the law is unconstitutional, and that the problems with the law will it make it difficult even for the Wisconsin Supreme Court, which typically leans conservative by one vote, to uphold the law.
In response to the court’s decision, Walker immediately condemned Colas as “a liberal activist judge” without discussing any of the case’s details. Similarly, Rep. Robin Vos (R-Rochester) said “A judge living in the fantasy world of Dane County has decided they are going to substitute their singular opinion as opposed to the collective will of Wisconsin.”
The message is that judges, jurisprudence and the entire judicial branch of government is just a charade. Colas (who, by the way, previously served as both a prosecutor and defense attorney) is just a liberal pretending to consider the constitutional questions. Of course, that cynical view opens the door to the same conclusion should the Wisconsin Supreme Court overturn Colas — that it’s just a bunch of conservatives imposing their opinions.
In fact, there are important constitutional questions involved here. When Walker and Vos respond by attacking Colas for doing his job, they spread the message that we are not really a government with three branches. And they leave you wondering if they fear the law they wrote has some problems.
-News accounts about an appeal to federal appeals have confused this issue. That is an appeal of an earlier, different challenge to Act 10 on much narrower grounds that has nothing to do with the Colas decision.
-On Saturday, a Milwaukee Journal Sentinel reporter did a story quoting Lester Pines criticizing Walker for his attack on the judge. Pines noted that this was bad form, undermining the judicial system, and also bad strategy by Walker, because you never know when you might need that judge on a future case.
No, I can’t give you the exact quote because by Sunday, that part of the story was wiped clean, and a revised story had eliminated all of these quotes from Pines. That might make sense for the print version, where space can be an issue, but it is disturbing to see the JS do this online, because it is clearly a case of the editors sanitizing a story. The newspaper is now erasing its own history.
-Does the county have a two-tier parks system? In response to my story on this, reader Eric Jernberg, who worked for years for the county, ticks off the many pools in poor neighborhoods on Milwaukee’s North Side that have been closed.
-And former JS reporter Gretchen Schuldt, our new senior contributing writer, offers an inside look at the federal investigation finding the state has blatantly ignored civil rights law in its transportation policies.