Posted by Brendan Fischer on September 14, 2012

A Wisconsin judge has struck down as unconstitutional sections of Wisconsin Governor Scott Walker's controversial collective bargaining law, Act 10, at least as applied to municipal and school district employees, who are the majority of public workers in the state. Act 10 prompted months of protests after it was introduced in 2011, and inspired a hard-fought recall effort that Walker survived in June of this year.

Dane County Judge Juan Colas found that the law's differential treatment between union and non-union employees imposes burden on the free speech, association, and equal protection rights of the plaintiffs, which included teacher's union "Madison Teachers Inc." and the Milwaukee city employees union "Public Employees Local 61." The law applies to most public workers in Wisconsin, but will not apply to those who work for the state.

"This is a sound decision by the court that upholds what we were saying all along -- that Act 10 violates constitutional rights," said Christina Brey, a spokeswoman for the Wisconsin Education Association Council.

Judge Colas found that the law offers certain privileges and advantages only to non-union members, and effectively makes those advantages conditional on employees not joining a union. Namely, Act 10 prohibits local governments from offering unions a base wage increase above the cost of living, or negotiating about other terms of employment -- limitations that do not apply to employees who are not represented by a union. Likewise, it prohibits automatic payroll deductions for union dues, but only because the dues go to a labor union.

Employees may retain the right to organize into unions, but "only if they give up their right to negotiate and receive wage increases greater than the cost of living," Judge Colas wrote. Those who don't join unions "are rewarded by being permitted to negotiate for and receive wage increases without limitation."

The law singles out unions "solely because of the purposes for which the organizations are formed and the employees choose to associate."

These restrictions violate employees' free speech and associational rights, he found. "It is undisputed that there is no constitutional right to collective bargaining," Judge Colas wrote, but once the government offers the right to associate and speak through forming a union, "it may not make the surrender or restriction of a constitutional right a condition of that privilege."

Judge Colas also found that Act 10 creates two classes of employees -- those who are represented by a union and those who are not -- and treats them differently, in violation of the equal protection clause of the 14th Amendment.

Additionally, Judge Colas found that Act 10 unlawfully interferes with the City of Milwaukee's pension plan, which under state law affords the city "the largest measure of self-government with respect to pension annuity and retirement systems." Judge Colas found that "Home Rule" authority gave Milwaukee control over its pensions and Act 10 interfered with the City's contract with its employees.

The judge rejected challenges to Act 10 based on procedural questions and due process claims.

In a statement, Governor Walker criticized the "liberal activist judge in Dane County" and vowed to appeal the case.

In March, a federal court overturned two of Act 10's provisions -- the prohibition on automatic dues deduction and the requirement of annual recertification -- on grounds that by specifically exempting "public safety" employees from the restrictions, the law created an arbitrary distinction that violated equal protection and First Amendment rights.

Judge Colas decision can be viewed here.


This article has been updated.

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