Appeals Court Upholds Act 10, Likely Sending Case to WI Supreme Court

Protesters rally at Wisconsin’s Capitol building to oppose Gov. Scott Walker’s budget repair bill, later called Act 10. Photo by Richard Hurd. (CC BY 2.0)

A state appeals court has upheld the landmark collective bargaining law known as Act 10, likely sending the case challenging the law to the Wisconsin Supreme Court.

The appeals court’s decision overturned a ruling from a Dane County Circuit Court judge, who declared Act 10 unconstitutional in 2024. But that same judge stayed his ruling almost immediately, keeping the law in place ever since.

Writing for the majority in a 2-1 decision, Judge Mark Gundrum said the lawsuit challenging Act 10 raised issues that had already been answered by previous rulings that upheld the law, both in state and federal court.

“Courts must respect both precedent and our role in deferring to the Legislature’s fiscal policy decisions,” Gundrum wrote.

Act 10 effectively ended union rights for most public employees, but not for others.

In her dissent, Judge Lisa Neubauer argued that this lawsuit had raised a fresh set of issues not argued in previous cases, and the circuit court got it right.

“The circuit court correctly determined that allowing some public safety employees to retain collective bargaining rights while excluding others violated the equal protection guaranty of the Wisconsin Constitution,” Neubauer wrote.

Assuming the case is appealed, it would go next to the Wisconsin Supreme Court, where liberals hold a 4-3 majority that will grow to 5-2 next month.

How the case got here

While the legal wrangling over Act 10 began before it even became law in 2011, this latest case was filed by a group of unions in November 2023.

Act 10 created two groups of employees. “Public safety employees,” like police officers and firefighters, preserved their union rights under the law. “General employees,” who make up the rest of the public workforce, did not.

The problem, unions argue, is that the list of “general employees” includes people like correctional officers working in state prisons, conservation wardens and Capitol Police. Unions contend there’s no “rational basis” to treat them differently than police or firefighters, and in December 2024, Dane County Circuit Court Judge David Frost agreed.

After Frost stayed his order, lawyers for unions asked the state Supreme Court to take the case directly on an expedited appeal. Justices declined that request in February 2025, sending the case to the District 2 Court of Appeals, which decided it Wednesday.

District 2 is based in Waukesha, and the judges who signed on to the majority decision have conservative ties. Gundrum, who wrote the majority opinion, was once a Republican state representative. Judge Shelley Grogan, who wrote a concurring opinion, was backed by a GOP group when she ran for the bench.

A much different mix of jurists will decide the case on the Wisconsin Supreme Court, where a liberal majority is about to grow. Grogan noted that shift in her opinion.

“The timing of this lawsuit is, to say the least, suspect,” Grogan wrote. “Renewed attempts to attack Act 10 on already-rejected bases simply because the composition of our Supreme Court has changed must be rejected.”

A Supreme Court with mostly liberal justices will have the final say

When Justice-elect Chris Taylor joins the court in August, it will give liberals a 5-2 majority, up from the 4-3 edge they have now. Taylor was an outspoken opponent of Act 10 when she was a Democratic state lawmaker and told WPR during her 2026 campaign that her past advocacy would not prevent her from hearing an Act 10 lawsuit on the court.

Judge Chris Taylor, right, is greeted by Wisconsin Supreme Court justices during her election night event Tuesday, April 7, 2026, at the Madison Concourse Hotel in Madison, Wis. Angela Major/WPR

Justice Janet Protasiewicz, whose 2023 election flipped the court from a conservative to a liberal majority, said as a candidate that she agreed with the dissent in a previous ruling that upheld Act 10. Republicans asked her to recuse herself from this case, but in February 2025, she said she won’t step aside.

In a written statement, the unions challenging the lawsuit said they were confident the circuit court’s original ruling would be affirmed but did not immediately promise an appeal.

“We remain confident in the merits of our case,” the unions said. “We are considering all options available.”

The list of plaintiffs in the case includes SEIU Wisconsin, the Abbotsford Education Association, the Beaver Dam Education Association, the American Federation of State County and Municipal Employees Local 47, AFSCME Local 1215, the Teaching Assistants Association and the Wisconsin Teamsters.

As of now, only conservative swing Justice Brian Hagedorn has announced he won’t hear the Act 10 lawsuit. Hagedorn previously served as chief legal counsel for former Republican Gov. Scott Walker during the period when Walker introduced and signed the landmark law.

That could leave five liberal justices and just one conservative — Justice Annette Ziegler — to consider the case that seeks to overturn the defining law of Walker’s governorship. Ziegler has announced she’s retiring, and two liberals are running to replace her,  but she’ll remain on the court through the end of her term next July.

Appeals court upholds Act 10, likely sending case to Wisconsin Supreme Court was originally published by Wisconsin Public Radio.