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Supreme Court Accepts Act 10 Case; Resolution Closer

By D&K’s Labor & Employment Team

On Friday, June 14, 2013, the Wisconsin Supreme Court announced that it has agreed to hear the constitutional challenges to the changes to public sector collective bargaining passed as 2011 Wisconsin Act 10. In accepting the appeal in Madison Teachers, Inc., et al. v. Walker, et. al. the Supreme Court has agreed to bypass the Court of Appeals and resolve the constitutional challenges to Act 10 once and for all. The Supreme Court goes into recess at the end of June; therefore, it is likely that the Court will not hear arguments on the case and issue a decision until this Fall.

To recap this case, on September 14, 2012, Dane County Circuit Court Judge Juan Colas held that certain provisions of Act 10 violated the Wisconsin Constitution. This decision was more fully discussed in Davis & Kuelthau’s September 15, 2012 Client Alert. As described in that alert, Judge Colas found the following provisions of Act 10 to be in violation of the state and federal constitutions and therefore void: (1) the statutory requirement that counties, school districts, and municipalities secure public approval to increase total base wages by more than the increase in the Consumer Price Index through referendum elections (2) the repeal of statutory authority to enter into an agreement to make fair share deductions from employees’ wages, (3) the prohibition against dues deductions, (4) the requirement that unions win more than 50% of all bargaining unit employees’ votes in annual elections to retain certification as employees’ bargaining representative, and (5) statutory provisions that prohibit collective bargaining on any subject except for total base wages for general municipal employees.

The Attorney General appealed Judge Colas’ decision to the Court of Appeals and also requested that the application of Judge Colas’ decision be stayed pending appeal. The Court of Appeals in a decision dated March 12, 2013, rejected the Attorney General’s petition to stay the application of the Circuit Court decision (See Client Alert of March 14, 2013). Then, on April 25, 2013, the Court of Appeals requested that the Wisconsin Supreme Court take the case immediately, rather than wait for the Court of Appeals to issue a decision.

This action by the Supreme Court is simply a decision to consider the case and has no implications on the validity of Act 10. Further, the case will not necessarily address disputes about the meaning and application of statutory language that was adopted as part of Act 10; for example, while the case will address the constitutionality of limiting negotiations to “total base wages” it may not settle every conceivable dispute about what is and is not part of total base wages. However, the Supreme Court’s willingness to consider the case now should hasten the arrival of a final resolution to many pending Act 10 disputes. Therefore, municipal employers should not change their current strategies in responding to union requests to bargain or in the bargaining process.

If you have any questions on this development, please contact your Davis & Kuelthau attorney or the Labor & Employment Chair, James M. Kalny, at 920.431.2223 /