MADISON — A Dane County judge ruled Wednesday that provisions of Wisconsin Act 10 are unconstitutional and denied a motion to dismiss a case challenging the Gov. Scott Walker-era law that severely limited the influence of unions, sparked massive protests and reshaped Wisconsin’s political climate for years to come.
Several unions representing public sector employees filed the lawsuit in November 2023, citing a “dire situation” in the workplace, with problems including low wages, staff shortages and poor working conditions. In May, Dane County Judge Jacob Frost considered a motion from the state Legislature to dismiss the case, promising a decision “in the near future.”
Frost, who was appointed to the Dane County Circuit Court in 2020 by Democratic Gov. Tony Evers, appears to have signed a petition seeking to recall the former Republican governor over the law. His signature appears on the petition next to an address where he lived in 2011 before Frost was a judge, according to land records.
The immediate implications of Frost’s order are unclear.
The complaint alleges that the 2011 law violates equal protection guarantees in the Wisconsin Constitution by dividing public sector employees into two categories: “general” employees and “public safety” employees. Public safety employees are exempt from the collective bargaining restrictions imposed on “general” public sector employees.
“The rational basis review rests on a simple premise. Can you explain a law’s differential treatment of different groups in a way that makes sense and supports public policy? If not, the differential treatment is irrational and violates the right to equal protection of the laws. For no one could provide this Court with an explanation that reasonably demonstrated why city police, firefighters, and state police officers are considered public safety employees, but Capitol Police, UW Police, and park rangers, who have the same authority and do the same job, are not,” Frost wrote in his decision.
“Thus, the Capitol Police, the UW Police, and the Forest Rangers are being treated unequally without any rational basis for the difference. Act 10 therefore violates their rights to equal protection under the law, and I declare the provisions of the Act relating to collective bargaining changes unconstitutional and void.”
The plaintiffs include the Abbotsford Education Association; the American Federation of State, County and Municipal Employees (AFSCME) Locals 47 and 1215; the Beaver Dam Education Association; conservation warden and AFSCME Local 1215 President Ben Gruber; Beaver Dam teacher Matthew Ziebarth; SEIU Wisconsin; Racine Unified School District employee Wayne Rasmussen; the Association of Teaching Assistants Local 3220; and the International Brotherhood of Teamsters Local 695.
Attorneys for the Justice Department and the state Legislature did not immediately respond to requests for comment. The outcome of the case in Dane County court will likely be appealed and likely go to the state Supreme Court.
Jacob Karabell, an attorney representing the unions in the challenge, said in a statement that the plaintiffs’ attorneys agree that Act 10’s collective bargaining provisions are unconstitutional and “look forward to the next steps in the case.”
Republicans denounced the order and the timing of its publication.
“Act 10 has been held lawful and constitutional against numerous state and federal court challenges for nearly 15 years. This is another example of the courts legislating from their seats,” state Senate Majority Leader Devin LeMahieu, R-Oostburg, said in a prepared statement. “Once again, the only way Democrats are going to get what they want is to have activist judges abandon their decisions on a holiday weekend when no one is watching. Unfortunately, if this decision stands, it will cost hardworking Wisconsin families millions of dollars.”
Bill 10 ended the ability of public sector unions to negotiate on anything other than wage increases, and these increases were capped at the rate of inflation. In addition, unions were required to hold annual elections to maintain their ability to negotiate these increases. For these elections, they must win a majority of all eligible members, not just those who vote.
Public sector workers earning $50,000 a year saw their take-home pay drop by about 8.5 percent because they had to pay more for benefits, according to an analysis done at the time by the nonpartisan Legislative Fiscal Bureau.
Four years after Act 10 was passed, Republicans approved a right-to-work bill that limited the power of private-sector unions.
A 2022 analysis by the Wisconsin Policy Forum found that since 2000, no state has seen a greater decline in the proportion of its workforce that is unionized than Wisconsin — a significant shift in the state that served as the birthplace of AFSCME and was the first to allow public-sector unions to negotiate contracts in 1959.
The passage of the law sparked a wave of recall elections. Walker, its architect, became the first governor in U.S. history to survive a recall, and former Lieutenant Governor Rebecca Kleefisch became the first female lieutenant governor to face one, as well as the first to survive one.
Thirteen state senators had to be recalled under Act 10: 10 Republicans and three Democrats. Most of the incumbent senators won, but Democrats managed to remove three Republicans. That was enough to take control of the Senate in the summer of 2012, but the victory came while the legislature was out of session and was short-lived. Republicans regained the majority in the fall.
The attention generated by Act 10 made Walker a national Republican figure, giving him the opportunity to launch a presidential campaign. For weeks, he led conservatives in polls, but he quickly abandoned his campaign as Donald Trump’s popularity soared among Republicans.
Former U.S. Rep. Peter Barca, who is currently challenging Republican Rep. Bryan Steil in the state’s 1st Congressional District, was the minority leader in the state Assembly from 2011 to 2017, when Act 10 was passed. He led a 60-plus hour-long debate in an unsuccessful attempt to kill the bill.
“I’ve always said that Bill 10 is divisive, unconstitutional and bad for working people,” Barca told the Milwaukee Journal Sentinel. “That’s why I led the fight against the bill.”[…]This is an example of what we don’t normally do and should never do in Wisconsin. Open, accountable and accessible government is what brings people together, and strong unions make our state stronger.”
Previous legal challenges to the law have failed, but this lawsuit comes months after liberal Supreme Court Justice Janet Protasiewicz was sworn in, overturning the Supreme Court majority for the first time in years. Unions at the state and national levels have contributed more than $560,000 to Protasiewicz’s campaign and the Wisconsin Democratic Party, not including individual contributions from their members.
In March, Protasiewicz told the Milwaukee Journal Sentinel editorial board that she would consider recusing herself from cases involving Act 10 because of her opposition to the law, including participating in protests in 2011 and signing a petition to recall Walker.
“I would have to think about it,” Protasiewicz said. “Given that I protested, given that I signed the recall petition, would I recuse myself? Maybe. Maybe. But I’m not sure.”
Lawyers arguing for the lawsuit’s dismissal have pointed out that Act 10 has withstood previous challenges. The Republican-led House has argued that the case should be dismissed because previous challenges have failed.
Republicans touted the law’s cost savings and said it gave elected officials and the public more control over their government, while Democrats argued it hurt schools and decimated employee morale by removing the ability of teachers, corrections officers and others to help decide their working conditions.
Frost concluded his order by saying: “Given that my decision appears to resolve all issues, I direct the parties to file a letter or memorandum with the court asking whether the court should enter judgment on the pleadings in light of this decision or take some other step to bring this action to a final judgment. As part of that discussion, the plaintiffs should indicate which sections of Act 10 should be severed and struck pursuant to my decision and the defendants will respond on that issue as well.”
You can contact Jessie Opoien at jessie.opoien@jrn.com. You can contact Laura Schulte at leschulte@jrn.com.
