Dane County Judge Overrules 60 Sections of Act 10

Protestors are seen here in front of the Wisconsin State Capitol on March 12, 2011. Photo by Richard Hurd. (CC BY 2.0)

Dane County Circuit Court Judge Jacob Frost issued a ruling Monday striking down more than 60 sections of Act 10 as unconstitutional. The 2011 law, a signature accomplishment of Republican Gov. Scott Walker, rolled back collective bargaining rights and benefits of public employees, including teachers and municipal employees.

The law had been upheld in past court decisions, but in November 2023 seven unions representing public employees filed a new lawsuit against Act 10, arguing it caused a “dire situation” of low pay, staffing shortages and poor working conditions. The suit argued Act 10 law violated the Wisconsin’s equal protection guarantees by dividing public employees into two classes: “general” employees who are subject to the law’s restrictions on collective bargaining and “public safety” employees who are exempt from the law.

In July Frost issued a ruling signaling that he agreed with this argument. “Nobody could provide this Court an explanation that reasonably showed why municipal police and fire and State Troopers are considered public safety employees, but Capitol Police, UW Police and conservation wardens, who have the same authority and do the same work, are not,” Frost wrote. “Thus, Capitol Police, UW Police, and conservation wardens are treated unequally with no rational basis for that difference.”

In his Monday ruling, Frost issued a far-reaching decision invalidating more than 60 sections of Act 10 — as well as several sections of Act 55, a 2015 follow-up to Act 10, which the 2023 lawsuit also alleged violates the state Constitution’s equal protection clause by treating various groups of public employees differently.

Frost wrote that Act 10’s definition of “public safety employee” is “irrational and violates the right to equal protection of the laws,” and therefore requires him to overrule most of the law. “I cannot solve Act 10’s constitutional problems by striking the definition of ‘public safety employee,’ leaving the term undefined and leaving the remainder of the law in place,” he wrote in Monday’s ruling.

Many of the 60 sections struck down by Frost pertain to wage increases and bargaining power of public employees, which was the heart of Act 10. Walker and Republicans argued that teachers and other public employees were overpaid. After the law was passed, public workers earning $50,000 a year saw their take-home pay decline by about 8.5% because they had to pay more for their benefits, according to an analysis by the nonpartisan Legislative Fiscal Bureau.

Union leaders praised the new ruling, with Kim Kohlhaas, president of the Wisconsin chapter of the American Federation of Teachers, saying Act 10 “stripped workers of the ability to speak up and be heard.”

Kurt Bauer, CEO and President of Wisconsin Manufacturers and Commerce, the state’s largest business lobby, criticized the ruling as “wrong on its face” and said it will end up costing local governments and school districts money. “Act 10 is not only constitutional, it is a critical tool for policymakers and elected officials to balance budgets and find taxpayer savings. Thanks to Act 10, the state, local governments and countless school districts have saved billions and billions of dollars,” Bauer said.

Frost said his judgement is effective immediately and prevents the enforcement of unconstitutional provisions of the 2011 law. “If the Legislature wants this Court’s decision to not yet have effect, it must move this Court to stay enforcement of its decision pending appeal,” he wrote. “That has not yet been requested, so I do not address it.”

Assembly Speaker Robin Vos (R-Rochester) has promised to appeal the ruling, noting that the ruling has come “more than a decade after Act 10 became law and after many courts rejected the same meritless legal challenges. Act 10 has saved Wisconsin taxpayers more than $16 billion. We look forward to presenting our arguments on appeal.”

Walker blasted the ruling in a post on the social media platform X as “brazen political activism.”

The law was proposed by Walker and enacted by the Republican-controlled Legislature in spite of massive protests that went on for weeks and drew as many as 100,000 people to the Capitol. It made Walker a nationally celebrated leader among Republicans and a reviled figure among Democrats. It also led to an attempt to recall Walker from office, with more than 900,000 voters signing a recall petition. But Walker survived a recall election, defeating Democrat Tom Barrett, then the mayor of Milwaukee. 

For decades Wisconsin had been one of the more unionized states, with its many manufacturing companies being unionized. It was also the first state in the nation to allow public sector unions to negotiate contracts in 1959. Walker, who once referred to it as a “divide and conquer” strategy, pushed for passage of Act 10 and four years later signed a right-to-work law that restricted union rights in the private sector.  A 2022 analysis by the Wisconsin Policy Forum found that, since 2000, no state saw a larger decline in the proportion of its workforce that is unionized than Wisconsin.

Frost’s ruling could recharge the issue of union rights in Wisconsin, and may eventually come before the Wisconsin Supreme Court, which now has a 4-3 liberal majority that might be sympathetic to this decision. But one of the liberal justices, Ann Walsh Bradley is stepping down from court, which could make the April 2025 election to replace her a referendum not just on abortion rights, which many have predicted, but on union rights. Walker said that Monday’s court ruling makes the state Supreme Court election “that much more important.”