A federal judge has struck down key provisions of Act 10 -- Governor Scott Walker's controversial legislation limiting collective bargaining -- on grounds that the arbitrary, possibly politically-motivated distinction between "public safety" and other public employees violated equal protection and First Amendment rights.

Several public employee unions had challenged the fact that Walker's bill exempted certain law enforcement and firefighter's unions from Act 10's restrictions, including the law's requirement that unions recertify annually with an absolute majority of members and its prohibition on voluntary union dues deductions.

"So long as the State of Wisconsin continues to afford ordinary certification and dues deductions to mandatory public safety unions with sweeping bargaining rights, there is no rational basis to deny those rights to voluntary general unions with severely restricted bargaining rights," wrote [3] U.S. District Judge William M. Conley.

The suit was filed by multiple public employee unions, including the Wisconsin Education Association Council, the Wisconsin Council of County and Municipal Employees, multiple district councils of the AFL-CIO and AFSCME, SEIU Healthcare Wisconsin, CTW, CLC; American Federation for Teachers - Wisconsin; and the Wisconsin State Employees Union. Defendants in the suit included Governor Walker and head of the Department of Administration Michael Huebsch, as well as the heads of the offices tasked with implementing the law.

Unions Treated Differently for Political Reasons

According to the decision [3], Act 10 created two new categories of employees: "public safety employees" that were exempt from the collective bargaining restrictions and "general employees," a classification that "does not correspond to any classification of employees in any previous Wisconsin law."

Judge Conley noted that "public safety employees," as defined by Act 10, "do not include police officers and fire fighters who work for the State, namely the Capitol Police, the UW Campus Police, and Fire / Crash Rescue Specialists" -- state workers who, along with traditional law enforcement and firefighters, are classified as "protective occupation employees" under other Wisconsin statutes.

Judge Conley observed that many of the unions receiving special treatment under the law had endorsed Walker in his 2010 gubernatorial campaign.

The judge said the court "could not wholly discount evidence that the line drawing between public safety employees and general employees was influenced (or perhaps even dictated) by whether the unions representing these employees supported Governor Walker's gubernatorial campaign." Judge Conley noted: "The Act's treatment of the Capitol Police, who endorsed the Governor's opponent, in comparison to its treatment of state vehicle inspectors, who endorsed the Governor, best illustrates this suspect line drawing."

Act 10 restricted collective bargaining for all unions other than those representing "public safety employees" in three main ways:

• Prohibiting collective bargaining over wages, hours, overtime and conditions of employment, allowing bargaining only on "base wages" (which were capped at inflation), and prohibiting the negotiation of "fair-share agreements" where non-union members contribute to unions for bargaining on their behalf.
• Requiring annual recertification for these unions from at least 51 percent of all general employees in the collective bargaining unit (rather than just a majority of those voting) -- this is an "absolute majority" requirement that, if applied to elections of public officials, would never have allowed Walker to take office.
• Prohibiting public employers from deducting union dues from employees' payroll checks.

None of these changes to collective bargaining applied to "public safety employees" or their unions.

(These provisions echo "model" bills approved by corporations and politicians through the American Legislative Exchange Council (ALEC), such as the "Public Employer Payroll Deduction Policy Act" [4], which prohibits automatic payroll deductions for union dues, and the "Public Employee Freedom Act" [5] which declares that "an employee should be able to contract on their own terms" and "mandatory collective bargaining laws violate this freedom").

The Walker administration asserted that the differential treatment was justified because of the potential threat to public safety if law enforcement or firefighters were to strike. Judge Conley found that, at least when applied to the requirements of annual recertification with an absolute majority and the prohibition on payroll dues deduction, the possibly politically-motivated distinction did not pass constitutional muster.

Walker Recertification Rules Violate Equal Protection

In a Fourteenth Amendment equal protection challenge not involving distinctions based on suspect classifications like race or gender, the state must only show a "rational basis" for drawing a line -- which is a very low burden.

Judge Conley said that annual recertification by a majority of all eligible employees "would typically pass the admittedly low bar of rational basis review." However, Conley said the Walker administration "failed to present sufficient evidence that exempting public safety employees from the new, expansive restrictions on collective bargaining bears [any] rational relationship to a legitimate government interest in avoiding strikes of those employees."

While there may be a valid reason to retain collective bargaining rights for "public safety employees" for fears of strikes, he noted, the requirement that all other public employees re-certify each year with an absolute majority of union members served no such hypothetical purpose.

Judge Conley noted that participation in a non-public safety union is "wholly voluntary," especially after Act 10 severely restricted collective bargaining so unions cannot "compel any participation of any employee in its union activities, even the payment of a 'fair share' fee.'"

He added, "[t]he only right granted (to a non-public safety) union is to bargain collectively on an adjustment in base pay. Even if this Governor and the Legislature had a reasonable concern that this remaining bargaining right might be abused, the concern is not rationally advanced by an unprecedented burden on a voluntary union's right to continue to exist from year to year."

"On the contrary," he wrote, "it seems irrational to impose this unique burden on a voluntary union with highly restrictive bargaining rights while maintaining far less burden on public safety unions in which involuntary membership and monetary support continue to be mandated by law."

The Court also noted that the burden that Walker's annual recertification process imposes on speech and association rights may also violate the First Amendment.

Discriminatory Dues Deduction Violates First Amendment

With respect to Act 10's prohibition on automatic dues deduction for all unions other than those representing public safety employees, Judge Conley determined that "it is even more irrational to deny a voluntary set off union dues to general union members who affirmatively request it while imposing an involuntary set off of dues by public safety union members who affirmatively oppose it."

Even if there were some sort of basis for allowing dues deduction for "public safety employees" and prohibiting it for all others, Judge Conley wrote, such a distinction violates the First Amendment.

Judge Conley wrote that union members engage in expressive activity protected by the First Amendment by joining a union and pooling their resources, and that political speech funded with those dues is further protected by the First Amendment. It is for this reason that the U.S. Supreme Court has ruled that non-union members cannot be required to pay towards a union's political activities (although, to prevent freeloading, non-union members could be required to contribute towards the costs of bargaining on their behalf).

Act 10 does not prohibit union members from voluntarily contributing to their union, Judge Conley wrote, "but it does bar the most efficient method by which these unions collect and their members pay dues." Both sides conceded that "general employee unions have lost dues and will continue to lose dues because of this barrier to ease of payment."

While the U.S. Supreme Court has upheld [6] state laws prohibiting the deduction of union dues, it only did so on the condition the ban was applied evenhandedly. The Wisconsin ban in Act 10 applied to only a subset of employees.

"Such speaker discrimination -- independent of content or viewpoint discrimination -- can form the basis of a valid First Amendment challenge," Judge Conley wrote.

The Walker administration tried to counter this argument by alleging that Act 10 has no impact on the quantity or diversity of speech because "general employees" and their unions do not have different viewpoints than "public safety employees" and their unions, apparently referencing the fact that all public sector unions in the state protested Act 10. Judge Conley rejected this argument:

"The fact that none of the public employee unions falling into the general category endorsed Walker in the 2010 election and that all of the unions that endorsed Walker fall within the public safety category certainly suggests that unions representing general employees have different viewpoints than those of the unions representing public safety employees."

The court also wrote that permitting favored "public safety employees" to deduct dues that can then be used for political speech represents "a governmental 'attempt to give one side of a debatable public question an advantage in expressing its views to the people.'"

As the judge observed:

"Act 10 was enacted in the maelstrom of a political sea change in Wisconsin, the Act itself being the principal lightening rod around which the tumult reached its heights, at least to date. Whether or not the prohibition on automatic dues deductions for most public unions, but not those who supported the new Governor and Legislature, was an intentional act to suppress the speech of those who opposed then, it has that appearance."

Perhaps, the court surmised, "the State of Wisconsin merely chose a dividing line between two classes of unions and applied it evenhandedly, but the court has difficulty with that result where the only apparent reason for discriminating between the entities is their different viewpoints."

"This court cannot uphold the State of Wisconsin's apparent, if not actual, favoritism and entanglement in partisan politics by discriminating in favor of fundraising efforts on behalf of public safety unions over general employee unions," Judge Conley stated.

Cindy Archer Implicated

Also discussed in the decision was former Deputy Secretary of the Department of Administration (DOA) Cynthia Archer. She provided an affidavit for the Walker team purporting to describe the distinction between "public safety" and "general" employees. Since providing that affidavit, Archer has become embroiled into the ongoing John Doe investigation [7] into Walker's aides, and she stepped down from her post at DOA just before FBI agents raided her home and seized computers.

According to Judge Conley's decision, the Walker Administration resisted efforts by plaintiffs to depose Archer, and as a solution sought to withdraw her affidavit from consideration. Judge Conley called this request "at best, unorthodox," and noted that under ordinary circumstances he would have ordered the deposition, but granted the withdrawal because plaintiffs did not object.

It is not known how much relevant information was included in that affidavit, and whether its inclusion would have affected the outcome of the case. If the affidavit would have had an impact on the decision, and the Walker Administration sought to withdraw it from consideration rather than have Archer deposed, it could suggest the administration has a lot to hide.

Automatic Dues Deductions Reinstated by May 31

Judge Conley ordered all automatic dues deductions reinstated by May 31, 2012, noting that "[t]his should give sufficient time for the defendants to seek a stay of this injunction from the Seventh Circuit Court of Appeals, and for government entities to adopt a workable procedure to return to automatic deductions should the Seventh Circuit deny a stay."

He also immediately blocked Act 10's requirement that unions be re-certified annually with an absolute majority of members.

The Court's order came just hours after the Wisconsin Government Accountability Board certified recall elections for Walker. That recall effort was prompted by Act 10, the same bill at issue in this case.