Dane County Circuit Court Judge Rules Bargaining Law Unconstitutional
September 15, 2012

Late Friday afternoon, Dane County Circuit Court Judge Juan Colas ruled that portions of Wisconsin’s public sector bargaining law, as modified by Act 10 and Act 32, are unconstitutional in violation of both the State and U.S. Constitutions. The Court ruled that parts of the law single out and encumber the rights of those employees who choose union membership and representation solely because of that association and therefore infringe upon the rights of free speech and association guaranteed by the state and U.S. Constitutions, the Wisconsin State Journal reported. As reported, the Judge also ruled that the law creates separate classes of state workers and treats them differently and unequally, in violation of the U.S. Constitution's equal protection clause.

More specifically, the Court ruled that (1) Section 66.0506 regarding a referendum for increases above the base wage for general municipal employees, (2) Section 118.245 regarding a referendum for increases above the base wage for school employees, (3) Section 111.70(1)(f) prohibiting fair share agreements, (4) Section 111.70 (3)(g) prohibiting dues deductions, (5) Section 111.70 (4)(d)(3) requiring annual elections to retain certification and (6) Section 111.70(4)(mb) prohibiting bargaining except for base wages for general municipal employees violated both the State and Federal Constitutions and therefore were unconstitutional. The Court also held that Section 62.623 regarding payments to the Milwaukee Retirement System violated the State Constitution.

This more recent Dane County Circuit Court decision of Judge Colas differs from the prior Dane County Circuit Court decision of Judge Maryann Sumi that eventually found its way to the Wisconsin Supreme Court. The prior Judge Sumi decision involved a challenge to the law’s passage, having a statewide impact and effectively holding up the law’s implementation. This current decision challenges the law itself as enacted.

This more recent case also follows a Federal District Court decision which also involved a challenge to the bargaining law. In that decision, U.S. District Judge William Conley ruled that the provisions involving dues and recertification were unconstitutional primarily based upon that fact that these provisions applied to general municipal employees but not to others such as police, fire and transit employees. At the same time, the Federal Court upheld other provisions now found unconstitutional by State Circuit Court Judge Colas.

We are evaluating the impact this case will have on jurisdictions outside of Dane County. While a circuit court decision generally is limited to that jurisdiction, this case was filed against the Governor and the three members of the Wisconsin Employment Relations Commission in their official capacities. Yet to be determined is whether or not the Wisconsin Employment Relations Commission is limited from now enforcing the law statewide, or simply within Dane County. We anticipate the Dane County Circuit Court decision will be appealed based on the official statements released by the offices of Governor Scott Walker and Attorney General J.B. Van Hollen shortly after the decision was issued.

As always, we will continue to keep you informed as this develops.


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