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  • WisBar News
    November 22, 2013

    Act 10: Supreme Court Vacates Contempt Order Against WERC Commissioners

    Nov. 22, 2013 – The Wisconsin Supreme Court, in a 5-2 decision, has lifted a contempt order against two state officials who were planning to hold union recertification elections as required by Act 10, which curbed the collective bargaining rights of public workers.

    However, the court did not rule on whether to “stay” (postpone) a September 2012 circuit court ruling that declared major provisions of Act 10 to be unconstitutional.

    That means Dane County Circuit Court Judge Juan Colas’s September 2012 decision on Act 10 still stands while the supreme court weighs the constitutional issues presented in the recently argued case of Madison Teachers Inc. v. Scott Walker et al.

    But two dissenting justices – Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley – say the per curium opinion leaves many unanswered questions for the bargaining units of school district employees who were required, under emergency rules, to file recertification election petitions in August for elections before Dec. 1.

    “What effect does today’s order have on unions that did not comply with WERC’s emergency rules, relying on the longstanding rule that government actors cannot enforce null and void statutes?” the dissenters asked.

    The dissent also used 26 pages to refute the nine-page per curiam opinion, stating the opinion “authorizes the executive to disobey the declaratory judgments of the judiciary.”


    In September 2012, Dane County Circuit Court Judge Juan Colas struck down as unconstitutional major portions of Act 10 and Act 32 (Act 10), the law passed in 2011 that severely curbed the collective bargaining rights of public-sector workers.

    The Wisconsin Department of Justice, on behalf of the state, filed a motion to stay that decision pending appeal. The circuit court denied the motion. A state appeals court also denied the stay, and the entire case was later certified to the Wisconsin Supreme Court.

    The plaintiffs, Madison Teachers Inc., had asked for an injunction to halt enforcement of Act 10 against non-parties to the case. But that request was denied.

    In September 2013, though, a number of non-party unions asked the circuit court to hold two commissioners for the Wisconsin Employment Relations Commission (WERC) in contempt for preparing to hold Act 10-mandated recertification elections this year.

    Act 10 requires annual recertification elections to certify collective bargaining agents, and emergency rule ERC 70 directs WERC on the process to hold these elections.

    School employee unions must annually request a recertification election by August 30 for elections to be held before Dec. 1 of that same year, or certification expires.

    Last month, Judge Colas held two WERC commissioners, James Scott and Rodney Pasch, in contempt for trying to enforce Act 10’s recertification election provisions. The ruling told the defendants to “take no further steps” to hold recertification elections.

    The state filed emergency motions asking for a stay of the contempt order that tells WERC’s commissioners to “cease and desist” enforcement of Act 10. The state also asked the supreme court to stay Colas’s 2012 decision while the case was still pending.

    Majority Opinion

    Five justices, in a per curiam opinion, concluded “that the contempt order issued subsequent to the appeal from the circuit court declaratory judgment constituted an impermissible interference with the appellate jurisdiction of this court.”

    The majority invoked is “superintending authority” to vacate the contempt order completely, rendering the state’s motion to stay the contempt order moot.

    Judge Colas had no power to issue the contempt order after the appeal had been filed, the majority explained, citing Wis. Stat. section 808.075(3), which says “the circuit court retains the power to act on all issues until the record has been transmitted to the court of appeals.”

    Under that provision, the circuit court may act on some specifically defined issues despite the pendency of an appeal, the majority noted, but not the issue here.

    “We are mindful of the pressures a circuit court can face from aggressive litigation in high-profile cases,” the per curiam opinion states. “However, when the appeal of a circuit court’s prior decision is pending before this court, the circuit court must take care to avoid actions that may interfere with the pending appeal.”

    On the stay issue, the per curiam opinions states: “We do not rule on the stay of the September 2012 declaratory judgment.”


    The dissent said section 808.07(2)(a)3 gives circuit courts broad power to act, whether or not an appeal is pending, to “make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered."

    Thus, it was appropriate for Judge Colas to issue a contempt order to preserve his judgment regarding Act 10, the dissent explained.

    Abrahamson and Bradley noted that the majority’s per curiam opinion does not mention section 808.07(2)(a)3 and “ignores the well-established law that when a declaratory judgment is entered against state officers, it is the practical equivalent of an injunction against those officers.”

    The declaratory judgment of the Dane County Circuit Court in Madison Teachers barred WERC commissioners from enforcing the emergency rules for recertification elections, the dissent argued, and that decision is not limited to the plaintiff unions.

    “The per curiam holding today would seem to require every individual person or organization affected by Act 10 to litigate a separate suit, eliminating the efficiency benefits and practicality of declaratory judgment as applied to a governmental actor,” the dissent wrote. “Such duplicative litigation is unworkable.”

    The dissent also highlighted state supreme court decisions holding that the state may not enforce statutes declared unconstitutional, as the Colas decision did, and said the per curiam decision strips judges “of important statutory authority to enforce their lawful judgments.”


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