A Wisconsin appeals court has refused to put a hold on a lower court's decision that overturned key provisions of Governor Scott Walker's controversial Act 10, which severely limited collective bargaining rights for most public employees. The appellate decision will allow teacher's unions and others to continue collectively negotiating contracts.
A three-judge panel rejected a request from Attorney General J.B. Van Hollen to delay enforcement of a judge's decision striking down several portions of Act 10 as unconstitutional.
Walker Admin's Request for a Stay Denied, Again
In September, Dane County District Judge Juan Colas found that Act 10's differential treatment between union and non-union employees imposes burdens on their free speech, freedom of association, and equal protection rights. The decision applied to municipal and school district employees, and some school districts took advantage of their reinstated bargaining rights and forged new contracts. A month later, Colas denied the state's request that he "stay" his decision -- put it on hold and withhold enforcement -- while it was appealed.
"We conclude that the circuit court acted within it discretion in denying the stay," the appeals court found.
Tuesday's ruling only considered whether Judge Colas properly denied the stay in October, rather than the merits of his September decision; a full appeal is scheduled for later this year.
Walker Admin Is Not "Near-Certain-to-Win" Appeal
However, the appeals court rejected the state's assertion that it was "near-certain-to-win" its appeal, which would have required Colas to consider a lesser showing of irreparable harm resulting from not staying the decision. The court instead said it was a "middle ground" case where the outcome of an appeal is not certain.
The appeals court said that "confusion" over whether collective bargaining is in effect is not compelling enough to put the ruling on hold. Additionally, the court found, granting a stay of the September decision would not resolve any of the underlying legal issues or prevent any further litigation.
"Until the Wisconsin Supreme Court finally resolves the issues, either by issuing a definite ruling on the merits or by issuing an order declining to review a merits decision of this court, it seems that ongoing litigation is inevitable," the appeals court said.
Multiple challenges to Act 10 have been filed in state and federal court since it became law in 2011. In January, the U.S. Court of Appeals in Chicago reversed a decision that found provisions of Act 10 unconstitutional, likely foreclosing further federal challenges. The decision by Judge Colas is in state court.
The National Right to Work Legal Defense Foundation, which has received funding from foundations controlled by billionaire industrialists Charles and David Koch (who backed Walker's election), filed amicus briefs in many of the cases.
May Raise Stakes in Wisconsin Supreme Court Race
A spokesperson for Attorney General Van Hollen said the state is considering whether to appeal the decision to the Wisconsin Supreme Court. One of the justices in the Supreme Court's 4-3 conservative majority, Justice Pat Roggensack, is up for reelection in April; this case could further raise the stakes in an already contested race.
The last Wisconsin Supreme Court election was also dominated by Walker's controversial Act 10. The 2011 Supreme Court race between incumbent Justice David Prosser -- who was formerly a GOP lawmaker in the state -- and challenger JoAnne Kloppenburg attracted national attention and record-breaking spending amidst protests over Walker's anti-union changes. The Court had been expected to make the final decision on legal challenges to Act 10. Prosser narrowly won after the last-minute discovery of uncounted votes in heavily Republican Waukesha County.
The court's ideological balance is again up for grabs in Justice Roggensack's race, and her reelection campaign has already attracted big spending by outside special interest groups like Club for Growth. Her challenger, Wisconsin attorney Ed Fallone, says Roggensack is part of the widely reported dysfunction on the Wisconsin Supreme Court, which maintained its narrow conservative majority with Prosser's re-election.