August 11, 2014 at 1:36 p.m.
Supreme Court finally puts Act 10 legal saga to rest
Supreme Court finally puts Act 10 legal saga to rest
The law effectively ended collective bargaining for public employees, except on a narrow range of wages, ended compulsory dues deductions from employees' paychecks and mandated annual recertification votes.
In another blow to liberals, the high court also affirmed the state's voter ID law.
Walker hailed the decisions and said he believed voter ID, which is still being contested in federal courts, will ultimately be vindicated there.
"Act 10 has saved Wisconsin taxpayers more than $3 billion," Walker said. "Today's ruling is a victory for those hard-working taxpayers. Voter ID is a common sense reform that protects the integrity of our elections. People need to have confidence in our electoral process and to know their vote has been properly counted. We look forward to the same result from the federal court of appeals."
Attorney general J.B. Van Hollen called both laws historic.
"Since the historic events of 2011, I have been dedicated to defending Act 10 and Wisconsin's voter ID law," Van Hollen said. "Today, the Supreme Court has completely upheld these laws. The decisions settle important state policy and serve to strengthen our constitutional democracy."
The state's largest teachers' union, the Wisconsin Education Association Council, said it would continue to be a vociferous and insistent advocate for government education.
"Wisconsin educators are disappointed, but no court ruling can take away their right to organize through a union," WEAC president Betsy Kippers said. "We are assessing how the ruling will impact our members and any options available. Here's one thing everybody should know: No law or legal ruling will ever stop us from remaining Wisconsin's loudest collective voice for students and public schools."
John Matthews, the executive director of Madison Teachers Incorporated, which brought this particular lawsuit, called the decision "morally bankrupt."
"The Wisconsin Supreme Court's ruling also reversed 50-plus years of legislation which enabled public employers and employee groups to work together to make workplaces not only more productive, but safer," Matthews said. "The quality of life of the people of our great state will long suffer as a result of this decision."
Wisconsin Manufacturers & Commerce applauded Walker and the Legislature for enacting the law, which it said demonstrated sound fiscal responsibility, and applauded the Supreme Court for upholding it.
"A recent WMC member survey revealed that the most important issue for Wisconsin business leaders is state fiscal policy," WMC president and CEO Kurt Bauer said. "Fiscal policy beat out reducing taxes, health care affordability and access to reliable and affordable energy. That tells you how much Wisconsin's business community values state and local government living within its means."
Bauer said Act 10 was a landmark achievement.
"It has saved taxpayers billions and it has saved public employee jobs," he said. "Act 10 has also helped improve Wisconsin's business climate by removing the threat of tax and fee increases caused by deficits."
A done deal
The tally on Act 10 was 5-2, with justice Michael Gableman taking the lead in writing the opinion. Justices Patience Roggensack, David Prosser, and Annette Ziegler joined his opinion.
In addition, justice Patrick Crooks concurred in a separate opinion, while chief justice Shirley Abrahamson and justice Ann Walsh Bradley dissented.
The bottom line was, according to Gableman's lead opinion, no constitutional right to collective bargaining exists. As such, he wrote, Act 10 cannot possibly infringe upon general employees' constitutional right to freedom of association.
"No matter the limitations or 'burdens' a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation," Gableman wrote. "The restrictions attached to the statutory scheme of collective bargaining are irrelevant in regards to freedom of association because no condition is being placed on the decision to participate. If a general employee participates in collective bargaining under Act 10's statutory framework, that general employee has not relinquished a constitutional right. They have only acquired a benefit to which they were never constitutionally entitled."
The First Amendment cannot be used as a vehicle to expand the parameters of a benefit that it does not itself protect, Gableman continued. Indeed, he wrote, the right of public employees to freely associate and to even join unions remained intact under the law.
"Not at issue in this case is the plaintiffs' constitutional right to associate to engage in protected First Amendment activities," Gableman wrote. "The plaintiffs remain free to advance any position, on any topic, either individually or in concert, through any channels that are open to the public."
Represented municipal employees, non-represented municipal employees, and certified representatives - none of those employees lost any right or ability to associate to engage in constitutionally protected speech, Gableman wrote, because their ability to do so outside the framework of statutory collective bargaining was not impaired.
"Act 10 merely provides general employees with a statutory mechanism to force their employer to collectively bargain; outside of this narrow context, to which the plaintiffs freely concede public employees have no constitutional right, every avenue for petitioning the government remains available," he wrote.
Not agreeing but concurring
Crooks said, in his view, Act 10 was unnecessary and bad public policy - a mistake, he wrote, but a mistake the Legislature and the governor were allowed constitutionally to make.
"In answering the legal questions put to us as we must, we affirm a legislative act that appears to have gone further than needed," Crooks wrote. "For many public workers, Act 10 effectively ended meaningful union representation carried out through statutory collective bargaining. This type of statutory collective bargaining has long been part of Wisconsin's progressive heritage."
Crooks said it was his firm belief that individuals should have the right to organize and bargain collectively regarding their wages and the terms of their employment.
"As thoughtful people from across the political spectrum and around the world have long recognized, collective bargaining benefits workers, employers and society itself," Crooks wrote. "Although Act 10 does not violate either the United States Constitution or the Wisconsin Constitution, it erodes longstanding benefits both to public workers and to public employers. I write separately to make clear what my vote in this case means and to emphasize the importance of policies that give rights to workers to organize and bargain collectively."
That said, he wrote, the legal questions in the case could be answered in no other way than the majority answered them.
"Because the affected workers retain 'a right to associate for the purpose of engaging in those activities protected by the First Amendment,' Act 10 violates neither their constitutional right of association nor their right to equal protection," Crooks wrote. "The collective bargaining rights at issue here are statutory, not constitutional rights."
Crooks went on to quote President Ronald Reagan's comments about his own days as president of the Screen Actors Guild, and his extolling of former AFL-CIO president George Meany. But, at the end of the day, Crooks conceded, the issue at hand was not his or the court's to decide.
"Act 10 embodies policy determinations, and such questions are not properly addressed to the members of the Supreme Court of Wisconsin," he wrote. "Such policy questions are for the Wisconsin Legislature and Governor, and their judgment on such policy matters is for the people of Wisconsin to evaluate. I respect the boundaries the judicial branch must observe and recognize that we cannot substitute our judgment on questions of policy for that of the Wisconsin Legislature and Governor."
The dissent
In the dissent, written by Bradley, she and Abrahamson disputed the majority notion that workers' freedom to associate wasn't impacted. Indeed, she wrote, the law encouraged political favoritism.
"The right of freedom of association to organize is diluted as the majority has opened the door for the State to withhold benefits and punish individuals based on their membership in disfavored groups," Bradley wrote.
Bradley said the court dodged and twisted the arguments made by Madison Teachers Incorporated and never fundamentally addressed the group's claim that the law infringes on workers' right to organize into a collective bargaining unit.
That argument, she wrote, is twofold.
"First, it focuses on the provisions in Act 10 requiring collective bargaining units to hold annual recertification elections, eliminating fair share agreements, and prohibiting municipalities from withholding dues from employees' wages," Bradley wrote. "It contends that these provisions violate its associational rights because they infringe on those rights by punishing association with a collective bargaining unit. Second, it argues that the provision in Act 10 prohibiting municipalities from bargaining over anything other than an increase in base wages up to the amount of inflation is an unconstitutional condition."
Taken together, Bradley wrote, those provisions violate the workers' right to organize because it discourages them from joining a collective bargaining unit.
"The First Amendment protects not just against State prohibition of association, but also against State punishment or penalty for the exercise of associational rights," she wrote. "Similarly, the provisions in Act 10 discourage organizing as a collective bargaining unit by increasing its cost."
Just how are those costs increased?
The law, Bradley stated, requires collective bargaining units to hold recertification elections annually in which 51 percent of all eligible employees must vote in favor of recertification.
"In addition to the costs involved in educating employees about the election and convincing employees to vote, collective bargaining units must pay a certification fee," she wrote. "By making membership unduly expensive, these Act 10 provisions collectively infringe on the associational right to organize. There is no doubt that these provisions act to discourage membership."
The majority, Bradley continued, avoided the question of whether those provisions impermissibly punished the exercise of the right to associate. Such an analysis must entertain the doctrine of unconstitutional conditions, she wrote, a doctrine she said the majority ignored.
"The focus of its analysis is deceptive as the doctrine of unconstitutional conditions does not look at whether the benefit is required," she wrote. "Regardless of whether the benefit is required, the doctrine focuses on whether an individual is required to give up a constitutionally protected right in order to obtain the benefit."
The doctrine of unconstitutional conditions provides that the government may not deny a benefit to a person because he exercises a constitutional right, but, she said, that's exactly what Act 10 does.
"Act 10 is clear: if you have exercised your associational right to organize as a collective bargaining unit you lose your ability to negotiate over anything other than an increase in base wages up to the amount of inflation," she wrote. "This is the textbook definition of an unconstitutional condition. By permitting such a statute to stand, the majority greatly dilutes the First Amendment protection on the right to freedom of association."
Voter ID
In two separate cases, the Supreme Court upheld the state's voter ID law.
In a 4-3 vote. the majority ruled that state fees imposed for a voter ID - the ID is free but requires a birth certificate costing $20 as proof of identity - were problematic, but removing the cost barriers would leave the law intact. In a 5-2 decision, the court rejected an argument by the League of Women Voters that the Legislature did not have the constitutional authority to enact a voter ID requirement.
Richard Moore may be reached at [email protected].
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