A Dane County judge on Wednesday declared parts of Wisconsin’s State Act 10 unconstitutional, saying former Republican Gov. Scott Walker’s landmark law, which strips most public sector workers of collective bargaining rights, wrongfully exempts some public safety workers from the law’s restrictions.
The immediate impact of Judge Jacob Frost’s decision to strike down part of the sweeping law that crippled public unions and sparked massive protests outside the Capitol 13 years ago is unclear. For now, it means the lawsuit challenging the disparate treatment of workers the law grants will go ahead, and Frost gave the parties several weeks to sort out which sections need to be struck after his ruling.
But Frost said the law’s separation between general and public safety employees “lacks a rational basis.”
For example, the law continues to allow collective bargaining among city police officers, firefighters and state troopers, but not between Capitol Police, UW Police and conservation officers.
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“Act 10 therefore violates their right to equal protection of the law and I declare the provisions of the act relating to changes in collective bargaining unconstitutional and void.”
Frost asked the plaintiffs to set out within 14 days which sections of Act 10 should be severed and struck out according to his decision, or to take other steps. He asked the defendants to respond within 14 days and gave the plaintiffs seven days thereafter to respond to the defendants.
Several union groups filed suit last November, arguing that lawmakers violated the state constitution when they created two separate tiers of public employees: those subject to the law, including teachers, administrators and garbage collectors, and those exempt, including police officers and firefighters – groups that largely supported Walker.
In arguing the state’s case in May, Deputy Attorney General Steven Kilpatrick said lawmakers intentionally exempted certain public safety employees from the rule because an illegal strike would cause irreparable harm to those employees.
Frost was unconvinced, pointing out that state law already prohibits public employees from striking. Moreover, he wrote, if public employees are subject to the same conditions as other public employees, a strike cannot result in concessions beyond what unions are permitted to negotiate under Act 10, namely an increase in base pay no greater than the rate of inflation.
“So if public safety workers are able to collectively bargain on more issues, the potential for strikes actually increases because more issues can be negotiated and agreement reached.”
Frost rejected the union groups’ arguments that there was no reasonable basis for creating a general category of workers separate from the public safety category, noting, “Their jobs are highly hazardous and the need to recruit and retain qualified employees in these categories is significant and different from many other less or non-hazardous public positions.”
“However, the legislature should have defined the public safety group in a way that makes rational sense. As explained, it fails to do so.”
The law provides that seven occupational groups will continue to have the right to collectively bargain over wages, better working conditions and other work-related issues: state patrol officers, motor vehicle inspectors, police officers, firefighters, deputy sheriffs, county traffic cops and local police officers and firefighters.
However, Frost said he could see no reasonable basis for excluding other occupations that perform many of the same tasks.
“Here, the legislature has not defined, either in words or in explanations, who belongs to the public security group,” he argued. “It has done so only by naming the specific employees who belong to the public security group.”
Frost also argued that prison guards would “surely” be included in the public safety group if the policy was aimed at preventing strikes among workers whose protests would pose a threat to public safety.
“If the need to catch criminals is so great that law enforcement agencies must be treated differently, then surely the same logic applies to treating prison staff equally to ensure that those convicted of crimes stay in prison,” he wrote.
The reaction to the verdict on the eve of the Fourth of July holiday was not long in coming.
“This ruling confirms that Act 10 has created divisions among Wisconsin workers and reinforces the principle that workers must be treated equally under the law,” Senate Democratic Leader Melissa Agard of Madison said in a statement. “As we celebrate this pro-worker ruling tonight, we must not rest until Act 10 is repealed and collective bargaining is restored for all public sector workers.”
Senate Majority Leader Devin LeMahieu (R-Oostburg) called the ruling “another example of courts making laws from the bench.”
“Once again, Democrats can only get their way if activist judges issue rulings on a holiday weekend when no one is watching. If this ruling stands, it will unfortunately cost Wisconsin’s hard-working families millions of dollars.”
Frost also faced criticism after it was revealed last month that his name was on a petition calling for Walker’s recall.
Bill 10 decimated public sector unions but was a windfall for taxpayers. Walker presented it at the time as a way to address a projected $3.6 billion budget deficit, and the bill’s passage kicked off more than a decade of Republican efforts to balance budgets without raising taxes. Increased contributions from public employees gave Republican lawmakers a foundation for their low-tax, small-government strategy.
Wisconsin residents got cheaper government, lower taxes and a way out of the immediate budget crisis, the Wisconsin State Journal noted in a 2021 series of articles examining the impact of the law on the 10th anniversary of its passage.
But public employees are bearing the brunt of the costs because their compensation is inadequate. The law has also exacerbated inequality across the state, the State Journal found.
As per-pupil education spending fell compared to the rest of the country, school districts responded by initiating hundreds of local referendums to allow them to increase local property taxes and raise more money for schools.
Supporters of Act 10 welcomed the legislation because it gives school districts more flexibility in recruiting and retaining teachers. But the added flexibility may lead to greater inequality because school districts with more resources can offer higher starting salaries than those with fewer resources, typically in more rural, northern areas of the state.
Republican lawmakers also argue that lower taxes encourage economic growth. However, in the decade following Act 10’s passage, Wisconsin’s economic growth generally lagged behind that of its neighbors and the rest of the country, as did personal income.
This is a developing story and will be updated.
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