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  • WisBar News
    May 06, 2013

    Court of Appeals Certifies Challenge to Act 10 and Act 32; Wisconsin Supreme Court Likely to Grant Review

    Controversial law eliminates most collective bargaining rights for public employees; enforcement on hold until constitutionality resolved.

    Wisconsin state flagMay 6, 2013 – In a case with nationwide political implications, the District IV Court of Appeals has asked the Wisconsin Supreme Court to review a legal challenge to Act 10 and Act 32, the legislation that effectively eliminated collective bargaining rights for public employees in Wisconsin. The legislation, known as the Wisconsin Budget Repair Bill, was proposed by Gov. Scott Walker and passed by the state legislature in 2011. The law has been nothing if not controversial; opposition to the law led to months of public demonstrations at the State Capitol and an unsuccessful attempt to recall the governor. The law was even the subject of argument during the now-infamous incident in which Supreme Court Justice David Prosser allegedly put his hands around the neck of Justice Ann Walsh Bradley.

    Certifying the case for supreme court review in Madison Teachers Inc. v. Scott Walker, 2012AP2067 (April 25, 2013), the court of appeals wrote that the appeal had “sweeping statewide impact” and presented a “pressing need for a final resolution” of a legal challenge to the law, which had “fundamentally alter[ed] the balance of power” between municipal employees and their employers on matters of pay and work conditions. The court also noted that the constitutional challenge by municipal employees would also have a direct impact on similar provisions affecting state employees.

    The challenge to the law was filed in Dane County Circuit Court in August 2011, shortly after the challenged provisions of Act 10 and Act 32 went into effect. In September 2012, Judge Juan Colas ruled that the provisions at issue violated the associational and equal protection rights of municipal employees. Judge Colas also found that the law violated the “home rule” clause of the state constitution by prohibiting the City of Milwaukee from paying for employee contributions to the Milwaukee Retirement System. State officials were unsuccessful in their attempts to overturn the injunction barring enforcement of the law.

    Four Issues Identified for Review

    The certification shows a careful and detailed effort by the court of appeals to set out the positions of the parties and narrow the issues. The court of appeals identified four issues for review by the supreme court.

    Attorney Brian Kinstler is filling in for Legal Writer Joe Forward during his leave. Brian practices state and federal criminal defense in Milwaukee, and blogs on criminal law issues at

    First, the parties agree that public employees have no constitutional right to collective bargaining. However, representatives of Madison Teachers argue that the law penalizes the exercise of associational rights by limiting what can be bargained; because the law infringes on First Amendment rights, it must be reviewed under the strict scrutiny standard. The state officials disagree, arguing that only statutory rights, not constitutional rights, are affected, and that the law is therefore subject to rational basis review. Both sides agree that the law would not survive strict scrutiny, but would survive a rational basis review.

    Second, Madison Teachers argues that the law violates equal protection because it creates two classes of employees that are treated differently: those that choose to participate in collective bargaining and those that do not. Madison Teachers takes a position similar to the previous one, and says that the treatment involves municipal employees’ associational rights, and therefore that strict scrutiny applies. The state officials again counter that the law does not infringe on employees’ associational rights. The court of appeals expressed its view that Madison Teachers’ “equal protection claim hinges on the merit of their associational claim.”

    Third, Madison Teachers asserts that Wis. Stat. section 62.623, which was created by Act 10 and Act 32, violates the Home Rule Amendment, Wis. Const. art. XI, §3(1), because it prohibits the City of Milwaukee from paying for employee contributions to the Milwaukee Retirement System. The state officials concede the effect of the law, but argue that it is not a violation of the Home Rule Amendment. The court of appeals certified this question because it was unable to find a clear test to apply in determining violations of the Home Rule Amendment. At issue is whether the amendment simply requires the law to be applied uniformly throughout the state, or whether it also requires that the law affect a matter of statewide concern.

    Fourth, the court certified the question of whether Wis. Stat. section 62.623 violates the contractual rights set forth in City of Milwaukee ordinances relating to employment and benefits.

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