Dane County judge overturns parts of Wisconsin Act 10
MADISON – A Dane County judge on Wednesday declared provisions of Act 10 – the Scott Walker-era law that severely limited the influence of unions, sparked massive protests and changed the political climate in Wisconsin for years to come – unconstitutional and denied a motion to dismiss a lawsuit challenging the law.
Several unions representing public employees filed the lawsuit in November 2023, citing a “catastrophic situation” in workplaces with problems such as low wages, understaffing and poor working conditions. Dane County District Judge Jacob Frost considered a motion by the state legislature to dismiss the case in May and promised a decision “in the near future.”
The lawsuit argues that the 2011 law violates the state constitution’s equal protection guarantees by dividing public employees into two classes: “general” and “public safety” employees. Public safety employees are exempt from the collective bargaining restrictions imposed on “general” public employees.
“The rational basis review provides a simple premise. Can you explain a law’s differential treatment of different groups in a way that makes sense and supports a public policy? If not, the differential treatment is irrational and violates the right to equal protection of the laws. For no one has been able to provide this Court with an explanation that reasonably explains why city police and firefighters and state police are considered public safety employees, but Capitol Police, UW Police, and conservation officers, who have equal authority and perform the same work, are not,” Frost wrote in his ruling.
“Thus, Capitol Police, UW Police and Conservation Officers are treated unequally without any reasonable basis for this difference. Bill 10 therefore violates their right to equal protection of the law, and I declare the provisions of the bill relating to changes in collective bargaining unconstitutional and void.”
Plaintiffs include the Abbotsford Education Association, American Federation of State, County and Municipal Employees (AFSCME) Locals 47 and 1215, Beaver Dam Education Association, Conservation Officer and President of AFSCME Local 1215 Ben Gruber, Beaver Dam teacher Matthew Ziebarth, SEIU Wisconsin, Racine Unified School District employee Wayne Rasmussen, Teaching Assistants’ Association Local 3220 and International Brotherhood of Teamsters Local 695.
Attorneys for the Justice Department and the Assembly did not immediately respond to requests for comment. The Dane County court’s ruling is certain to be appealed and will likely go to the state Supreme Court.
Act 10 ended the ability of public sector unions to negotiate on issues other than pay raises, and those raises were capped at the rate of inflation. In addition, unions were required to hold annual elections to maintain their ability to negotiate those raises. In those elections, they had to win a majority of all eligible members, not just those who cast a vote.
According to an analysis at the time by the nonpartisan Legislative Fiscal Bureau, the take-home pay of public employees earning $50,000 a year shrank by about 8.5 percent because they had to pay more for their benefits.
Four years after passing Act 10, Republicans approved a Right-to-Work law that limited the power of unions in the private sector.
A 2022 analysis by the Wisconsin Policy Forum found that since 2000, no state has seen the share of unionized workers decline as much as Wisconsin – a significant development in the state that is considered the birthplace of AFSCME and was the first to allow public sector unions to negotiate collective agreements in 1959.
The passage of the law sparked a wave of recalls. Walker, its author, was the first governor in U.S. history to survive a recall, and former Lieutenant Governor Rebecca Kleefisch was the first lieutenant governor to face such a challenge, and also the first to survive such a challenge.
Thirteen state senators were recalled because of Act 10—ten Republicans and three Democrats. Most incumbents won, but Democrats were able to unseat three Republicans. That was enough to give them control of the Senate in the summer of 2012, but the victory came when the legislature was out of session and was short-lived. Republicans regained the majority that fall.
The attention generated by Act 10 turned Walker into a national Republican figure and gave him a chance to run for president. He led conservative polls for weeks, but he quickly abandoned his campaign as Donald Trump’s popularity among Republicans soared.
Previous legal challenges to the law failed, but this lawsuit was filed months after liberal state Supreme Court Justice Janet Protasiewicz was sworn in, overturning the Supreme Court’s majority for the first time in years. State and national unions donated more than $560,000 to Protasiewicz’s campaign and the Wisconsin Democratic Party, not including individual donations from members.
Protasiewicz told the Milwaukee Journal Sentinel editorial board in March that she was considering recusing herself from cases related to Act 10 because of her opposition to the law, including her participation in protests in 2011 and signing a petition to recall Walker.
“I would have to think about it,” Protasiewicz said. “Given that I demonstrated and signed the petition for recall, would I then oppose myself? Maybe. Maybe. But I don’t know for sure.”
Lawyers arguing for the dismissal of the lawsuit emphasized that the law had withstood 10 previous challenges. The Republican-led House argued that the case should be dismissed because of the failure of previous challenges.
Republicans touted the savings from the law, saying it gives elected officials and the public more control over their government. Democrats argued that it hurts schools and decimates employee morale by depriving teachers, corrections officers and others of a say in their working conditions.
Frost concluded his order by saying, “Because my decision appears to resolve all issues, I order the parties to submit to the Court a letter or memorandum explaining whether, in light of this decision, the Court should enter judgment on the complaint or take other steps to bring this litigation to a final judgment. As part of that discussion, plaintiffs should address which sections of Act 10 must be severed and struck pursuant to my decision, and defendants should also address that question.”
This story will be updated.
You can reach Jessie Opoien at [email protected]. You can reach Laura Schulte at [email protected].
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