A closer look at the Dane County Act 10 ruling

A Dane County judge has overturned the state’s landmark law prohibiting most public employees from engaging in collective bargaining, saying a key employee definition treated some public workers differently from others without any rational basis to do so.

Circuit judge Jacob Frost said the law exempted some public safety workers from the law — most police and firefighter unions — but not others, such as the University of Wisconsin police and conservation wardens, and the legislature offered no rational explanation for the unequal treatment.

Frost also said the unconstitutional provisions were fatal to the entire law, though the legislature had argued otherwise.

“The legislature cites no precedent for this bold argument that I should simply strike the unlawful definition but leave it to an agency and the courts to later define as they see fit,” Frost wrote. “Interpreting ‘public safety employee’ after striking the legislated definition would be an exercise in the absurd.”

The ruling was not unexpected because Frost had made the same arguments last summer in denying motions to dismiss the case.

The law now heads to the appeals court, and there could be significant drama. The current 4-3 progressive majority on the state Supreme Court could be expected to uphold Frost’s decision when it gets there, but there is also an upcoming Supreme Court election on the docket for this spring. 

Liberal judge Ann Walsh Bradley is retiring, so the election could change the ideological composition of the court, and it is reasonable to now expect that election to become a referendum on Act 10, whether or not the Supreme Court rules before a new judge is seated.

Reaction

Republicans assured the public that an appeal was coming.

State Senate majority leader Devin LeMahieu (R-Oostburg) said the ruling was the latest in a string of liberal attacks on GOP policies helping taxpayers.

“For over a decade, liberal activists have attacked reforms that have saved Wisconsin taxpayers tens of billions of dollars,” LeMahieu said. “Despite Act 10 being upheld repeatedly by state and federal courts, an activist Dane County judge decided to issue a ruling suddenly deciding Wisconsin’s law is unconstitutional. We will appeal this decision immediately.”

State Assembly speaker Robin Vos (R-Rochester) also cited previous court rulings.

“This lawsuit came more than a decade after Act 10 became law and after many courts rejected the same meritless legal challenges,” Vos said. “Act 10 has saved Wisconsin taxpayers more than $16 billion. We look forward to presenting our arguments on appeal.”

The conservative Wisconsin Institute for Law & Liberty (WILL) likewise observed that the law had been upheld in multiple cases.

“Today’s decision is based on reasoning that was rejected by the federal courts years ago and departs from the way in which Wisconsin courts have handled equal protection cases,” Rick Esenberg, WILL president and general counsel, said. “It substitutes the judgment of the court for that reached by the legislature. Not only does this put taxpayers back on the hook for billions of dollars, it opens the door to allow judges — whether they be liberal, conservative or otherwise — to undermine the legislative process.”  

WILL said it had analyzed what it would cost state and local governments if ACT 10 collective bargaining reforms ended.

“The reports estimated about $1.1 billion in new annual costs for school districts and more than $480 million in new annual costs for local governments,” WILL stated. “These costs stem from increases in employee pay, healthcare, and retirement benefits increases that would likely follow.” 

Kurt R. Bauer, Wisconsin Manufacturers & Commerce (WMC) president & CEO, said the ruling was wrong on its face and inconsistent with the law.

“Act 10 is not only constitutional, it is a critical tool for policymakers and elected officials to balance budgets and find taxpayer savings,” Bauer said. “Thanks to Act 10, the state, local governments, and countless school districts have saved billions and billions of dollars — protecting Wisconsinites from massive tax increases over the last decade-plus. WMC and our members hope this ruling will be appealed and that Act 10 will be reinstated as quickly as possible.”

Americans for Prosperity-Wisconsin state director Megan Novak gave a nod to how important the issue will be in the upcoming state Supreme Court election.

“This ruling is nothing more than judicial activism by a Gov. Evers’ appointee,” Novak said. “… Now more than ever, it is imperative to restore balance in our state’s courts and elect judges who will consider the facts of a case rather than rubber-stamp the Left’s political agenda. Electing Brad Schimel, a fair and balanced judge, will restore the rule of law in our courts and stop judicial activism from making politically motivated decisions.”

Democrats, on the other hand, were ecstatic.

Representative Lisa Subeck (D-Madison) said Act 10 was one of the most significant attacks on workers’ rights in Wisconsin history, and that it continued to have devastating effects on the economy and the well-being of working families across the state.

“This ruling is a decisive victory not only for Wisconsin public employees, but for all Wisconsinites who stand to benefit from a state government that treats its public servants with dignity and respect,” Subeck said.

State Sen. Dianne Hesselbein (D-Middleton) likewise applauded the decision.

“This is a crucial step to recognize and restore the rights of hard-working public employees doing the people’s work in every corner of Wisconsin,” Hesselbein said.  “There are likely further hurdles ahead and I applaud the resolve of those who have kept up the effort to restore the right to collectively bargain in the state.”

Wisconsin AFL-CIO president Stephanie Bloomingdale said Wisconsin workers could now celebrate.

“Act 10 has done great harm to working people in our state and has done great damage to the public services our families depend on every day,” Bloomingdale said. “It has lowered wages and led to staff shortages and long-term vacancies in key public service positions. Working families in Wisconsin will greatly benefit from the restoration of collective bargaining rights.”

Restoring those union freedoms to Wisconsin workers will strengthen Wisconsin’s middle class, lift up the voices of workers, and lead to better public services for communities, Bloomingdale said.

“Working people in Wisconsin will head into 2025 with a renewed sense of solidarity and a reinvigorated commitment to union organizing so that every worker who wants to be in a union can freely do so,” she said. “It’s time to turn the page on the dark days of Scott Walker’s union-busting and move forward together with full worker freedoms and union rights for all in Wisconsin.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.