Wisconsin State AFL-CIO President Phil Neuenfeldt and Secretary-Treasurer Stephanie Bloomingdale send us this.
On Friday Sept. 14, Dane County Circuit Judge Juan Colas granted summary judgment in favor of Madison Teachers Inc. and others, finding many basic provisions of Act 10 violate the U.S. and Wisconsin constitutions and are therefore null and void.
Judge Colas found that the restriction limiting the increases on general municipal employees’ base wages only to the consumer price index (CPI) if bargained by a union burdened employees’ rights to free speech and freedom of association, since the limitation applied only to municipal employees represented by a union.
The judge held the prohibition against payroll dues deduction and the annual recertification election requirement by 51% of those eligible to vote burdens freedom of speech and association rights of those employees who support unions.
The court also found that the above described provisions violated employees’ equal protection rights when strict scrutiny is applied. Strict scrutiny is applied to provisions that burden fundamental rights such as freedom of speech and association.
Judge Colas referred, in a footnote, to the decision of U.S. District Judge William Conley, who also invalidated the prohibition of payroll dues deduction and the annual recertification elections as unconstitutional.
Judge Colas also found the Act 10 requirement that employees covered by the city of Milwaukee pay 5.5% toward their pension violated the city's right to home rule under the Wisconsin Constitution and the city’s contract with its employees, since the city charter provides the city pay the 5.5% and that the terms of the pension were vested.
The analysis of Judge Colas has some parallels to Judge Conley’s decision. Both find violations of free speech and equal protection clauses of the U.S. Constitution and invalid the annual recertification elections and prohibition of payroll dues deduction for unions.
Judge Colas’ decision, however, goes farther. It invalidates all the restrictions on municipal employees right to bargain, not just the recertification election and the prohibition on payroll dues deduction. It finds that more provisions of Act 10 violate fundamental rights and therefore applies strict scrutiny to all those provisions when evaluating equal protection. The equal protection analysis is not based on the distinction between general and public safety employees, but rather the difference between represented and unrepresented employees.
It is likely Gov. Scott Walker will appeal the decision, just as he appealed Dane County Judge Maryann Sumi’s earlier decision enjoining the statute and Judge Conley’s decision. If that occurs there also may be a motion to stay the court’s decision, pending appeal. One concern is whether the Wisconsin Supreme Court will review the decision on the basis of the evidence and legal precedent or, for political reasons, will ignore the legal precedent on which Judge Colas relied.