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Appeals Court Denies Request to Grant Stay; Act 10 Debate Continues

By Robert W. Burns

The Wisconsin Court of Appeals issued an Order on March 12, 2013, denying the State Attorney General’s request to stay the Dane County Circuit Court decision of Judge Colas that declared certain portions of Act 10 unconstitutional. The Order did not address the merits of the constitutional issues on appeal, but only dealt with the motion to stay.

While the denial of the stay means Judge Colas’ decision remains in place for now, the Court of Appeals did not resolve the question of whether that Dane County decision has any statewide application, but merely recognized that the debate on that point continues. On that issue, the Court of Appeals stated the following in a footnote:

In their motion for a stay, the appellants indicated that the circuit court’s decision was not binding state-wide. In response to our request for supplemental briefing, the appellants expanded on this topic and more forcefully argued that the circuit court’s decision is not binding state-wide on nonparties.

We acknowledge that the respondents argue that the circuit court’s decision here is binding statewide. But we reject out of hand the proposition that the circuit court’s decision has the same effect as a published opinion of this court or the supreme court. . . .

The Court of Appeals did not feel the arguments made regarding “statewide confusion” were sufficient to overturn Judge Colas’ denial of the stay request. As a result, this Order does little to change the current strategies for municipal employers when responding to bargaining requests from unions.

The next step in this litigation will be for the Court of Appeals to render a decision on the merits of the constitutional issues, unless the Wisconsin Supreme Court were to take up the matter at the request of one of the parties or on the Supreme Court’s own initiative. Please contact your Davis & Kuelthau attorney or Robert W. Burns, at / (920) 431-2224 if you have any questions on this development.