Act 10 Ruling Could Be Tough to Overturn

Photo by Richard Hurd. (CC BY 2.0).

Last week Dane County Judge Jacob Frost overturned Act 10, the sweeping law decimating public worker union rights in this state, more than 10 years after the Wisconsin Supreme Court upheld the law, in July 2014. Republicans expressed outrage over the ruling, with Assembly Speaker Robin Vos (R-Rochester) complaining that the ruling has come “more than a decade after Act 10 became law and after many courts rejected the same meritless legal challenges.”

In fact, this decision is really based on a different legal challenge. In the case ruled on by the Wisconsin Supreme Court 10 years ago, the union’s lawyers argued that Act 10 violates the right to equal protection because it treats workers who are represented by a union differently than those who are not. But the majority noted that the Legislature had a rational basis for such treatment and that there’s no constitutional right to collectively bargain.

But the current challenge by unions argues that general public employees are being treated differently than public safety employees, like police and fire fighters, who were exempt from its requirements, and argued this violated the equal protection clause of the state constitution. But they went further and argued that different groups of public safety employees were treated differently with no rational explanation for this.

Back in July, when Frost made his initial decision, he noted that the Legislature argued it treated public safety employees differently “for fear of the danger to society this might cause….[But] 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. Thus, Capitol Police, UW Police, and conservation wardens are treated unequally with no rational basis for that difference.”

Did the Legislature have an answer to this problem? Not according to Frost. “It attacks the reasoning I set forth in the July Decision, often referring to that Decision and arguing where I erred,” he noted in last week’s decision. “Despite that, the Legislature never points to any error of fact or law in my July Decision and never uses those terms that form the basis of a motion for reconsideration.”

And this is not the first time Republicans had a problem with this exact issue. Back in 2013 a federal Appeals Court decision upheld Act 10 on a 2-1 vote by two Republican appointees, with a dissenting decision by Democratic appointee David Hamilton.

One of the arguments brought up before that court was precisely the same one Judge Frost jumped on — that differently groups of public safety employees were treated differently. Judge Hamilton noted that the state’s lawyers argued that Republican Gov. Scott Walker and GOP legislators protected the rights of public safety employees like the police and fire unions for fear that ending their rights would trigger an illegal strike or harm public safety. Hamilton offered a powerful response, as Urban Milwaukee reported in 2013.

“If the State’s proffered explanation for treating ‘public safety’ employees differently were actually true,” Hamilton countered, “it would be hard to understand why that explanation would not apply as well to police officers at the University of Wisconsin, Capitol Police officers, the State’s thousands of correctional and probation officers, and many others with important public safety duties. Instead, those employees, whose unions did not endorse Governor Walker, are treated as general employees.”

Hamilton noted an affidavit by the Deputy Secretary of the Wisconsin Department of Administration, who helped with the “planning for contingencies arising from the enactment of Act 10 including potential job actions and strikes.” Her assessment concluded that the Department of Corrections and its staff were crucial. “Despite these findings, the prison guards, who the record shows are crucial to public safety and have a history of striking, were classified as ‘general employees‘ and not as ‘public safety‘ employees. Their union did not support Governor Walker in the election.”

Hamilton also noted the Department of Administration’s analysis “identified a probable gap in staffing for state building and staff security in the event of large scale protests….Yet the Capitol Police were also categorized as ‘general employees’ deemed not critical to public safety in the event of a mass action.” The Capitol Police, too, were members of a union that did not support Walker for governor.

After obliterating the Republican “public safety” rationale, Hamilton then quoted Senate Majority Leader Scott Fitzgerald’s comment before passage of Act 10 that ‘[i]f we win this battle, and the money is not there under the auspices of the unions, certainly what you’re going to find is that President Obama is going to have a . . . much more difficult time getting elected and winning the state of Wisconsin.’”

“Helping one side win elections is certainly a rational reason for the payroll deduction limits [for some public employees]” Hamilton noted, “and the limits were designed well to serve that purpose. But under the First Amendment, of course, it’s not a permissible reason for restricting access to… payroll deductions. It’s transparent viewpoint discrimination.”

Hamilton’s withering dissent, however, became irrelevant as his concerns were never raised with the Wisconsin Supreme Court and thus never ruled on. But the weak response of Republican legislators both to Judge Hamilton and to Judge Frost suggests they have no rationale for differential treatment of different public safety employees — other than whether they donated to Walker’s campaign.