Act 10 Still Divides the Capitol

Photo by Richard Hurd. (CC BY 2.0)

In July 2014, the Wisconsin Supreme Court upheld Act 10, the signature achievement of first-term Republican Gov. Scott Walker and Republicans who controlled the Legislature. Act 10 ended more than six decades of collective bargaining for all public employees except “public safety employees.”

Passed in 2011 over the angry pleas of hundreds of thousands of protestors, Act 10 is still roiling the Capitol, dividing elected officials, unions and business leaders and expected to end up again before the Supreme Court.

It is unclear, however, whether the Supreme Court will again rule on Act 10 before or after the April election that will – once again – decide whether a liberal majority will continue to control the seven-justice panel.

Act 10 is back because Dane County Circuit Court Judge Jacob Frost formally declared dozens of its prohibitions unconstitutional.

A key part of Frost’s decision was that Act 10 illegally created two different classes of public employees: teachers and service workers who were covered by the law and police officers, firefighters and state troopers exempted as “public safety employees.” Capitol and UW police officers, conservation wardens and prison guards were not exempt, however.

“This distinction between general and ‘public safety employees’ is meaningless without Act 10’s creation of these two categories,” Frost wrote in his decision, which Republican legislative leaders immediately appealed.

Act 10 also made covered employees pay more for health care and pensions, limited pay raises to the increase in the Consumer Price Index and required annual votes to recertify unions.

A historical look at Act 10 and its legal history is fascinating.

First, only two of the seven justices who participated in the 2014 decision – Chief Justice Annette Ziegler and Justice Ann Walsh Bradley – are still on the court.

The five-justice July 2014 majority opinion was written by then-Justice Michael Gableman, who did not seek re-election in 2018 and who was recently the subject of an Office of Lawyer Regulation (OLR) referral for misconduct that could lead to suspension of his law license. The OLR referral cited misrepresentations by Gableman in how he handled a state Assembly probe of Wisconsin’s 2020 election for president.

Joining Gableman’s 2014 opinion upholding Act 10 were Ziegler, retired Justice Pat Roggensack and Justices David Prosser and Patrick Crooks. Prosser died on Dec. 1, Crooks in 2015

Justice Bradley’s dissent to the majority opinion was joined by then-Chief Justice Shirley Abrahamson, who died in 2020.

Other historical notes: Justice Brian Hagedorn, who was elected to the court in 2019, was Gov. Walker’s chief counsel during the Act 10 debate. And Justice Janet Protasiewicz, who was elected in 2023, was a Milwaukee County prosecutor when she signed a petition urging Walker’s recall.

Walker, who lost his bid for a third term in 2018, is now president of the Washington-based Young America’s Foundation.

Reacting to Frost’s ruling, Walker said Act 10 had saved Wisconsin taxpayers $16 billion since it was enacted and added, “Collective bargaining is not a right. It is an expensive entitlement.”

Democratic Gov. Tony Evers, who was state superintendent of public instruction in 2011, praised Frost’s decision: “Workers should have a seat at the table in decisions that affect their daily lives and livelihoods. It’s about treating workers with dignity and respect and making sure no worker is treated differently because of their profession.”

Also gone from the Capitol are the four legislative leaders who led their parties through the Act 10 firestorm. Senate Majority Leader Scott Fitzgerald is now a U.S. House member; his younger brother, Assembly Speaker Jeff Fitzgerald, is now a lobbyist with more than 20 clients; Senate Democratic Leader Mark Miller retired in 2020 and Assembly Democratic Leader Peter Barca served as state revenue secretary before losing a campaign for the U.S. House on Nov. 5.

The Gableman-led majority in 2014 focused on this issue: Public employees have no constitutional right to collectively bargain. “[Unions] seek the right to organize with others to pursue something more specific: collective bargaining with their employers on a range of issues,” Gableman wrote. “This is not a constitutional right.”

There is another huge difference between the 2011 passage Act 10 and now. The Great Recession of 2007-09 left Walker facing a projected $3.6 billion budget deficit in 2011, which is one reason he cited in pushing for Act 10. On July 1, state government is expected to have a record $4.6 billion surplus.

That’s an $8.2 billion difference in the state’s financial position.

Steven Walters started covering the Capitol in 1988. Contact him at stevenscotwalters@gmail.com