A Dane County judge Wednesday ruled part of Wisconsin's Act 10 unconstitutional, saying former Republican Gov. Scott Walker's landmark legislation prohibiting most public sector employees from collective bargaining rights unfairly exempted some public safety employees from the law's limitations.
The immediate impact of Judge Jacob Frost's decision undoing part of the sweeping law that crippled public unions and sparked massive protests at the Capitol 13 years ago is unclear. For now, it means that the lawsuit challenging the differential treatment the law affords employees is allowed to proceed, andFrost gave the parties several weeks to address what sections must be struck under his ruling.
But Frost said the law's creation of a division between general and public safety employees "lacks a rational basis."
The law, for example, continues to allow municipal police and fire and state troopers to collectively bargain but not Capitol Police, UW Police and conservation wardens.
"Act 10 therefore violates their rights to equal protection under the law and I declare those provisions of the Act relating to collective bargaining modifications unconstitutional and void."
Frost ordered the plaintiffs to argue what sections of Act 10 should be severed and struck under his ruling, or file to take some other action, within 14 days. He asked the defendants to respond 14 days after that and gave the plaintiffs seven days after that to respond to the defendants.
Several union groups brought the suit last November, arguing lawmakers violated the state Constitution when they established two separate tiers of public employees: Those subject to the law, including teachers, administrative staff and sanitation workers, and those exempt, including police and firefighters— groups that largely endorsed Walker.
In arguing the state's case in May, Assistant Attorney General Steven Kilpatrick said the Legislature purposefully exempted certain public safety employees because of the irreparable harm that would be caused if those employees chose to illegally strike.
Frost was unpersuaded, noting that state law already prohibits public employees from striking. Moreover, he wrote, if public safety workers were subject to the same conditions as other public employees, any strike could not result in concessions beyond what the unions are allowed to negotiate under Act 10, which is base wage increases no greater than inflation.
"Thus, maintaining bargaining rights on more topics for public safety workers actually gives more potential for striking, as more issues can be bargained over and disagreed upon."
Frost rejected the union groups' arguments that there is no rational basis for creating a general employee category separate from a public safety category, noting "their jobs are highly dangerous and the need for recruiting and maintaining quality employees in these categories is significant and unique from many other, less or non-dangerous public positions.
"The Legislature, however, needed to define the public safety group in a way that makes rational sense. As explained, it fails to do so."
The law affords seven occupations that still enjoy the right to collectively bargain for wages, better workplace conditions and on other employment-related issues: State Patrol members, motor vehicle inspectors, police officers, firefighters, sheriff's deputies, county traffic police officers and local police officers and firefighters.
But Frost said he could find no rational basis for excluding other jobs with many of the same duties.
"Here the Legislature did not define the bounds of who is in the public safety group with words or explanation," he argued. "It only did so by naming the specific employees put into the public safety group."
Frost also argued out prison guards would "surely" be included in the public safety group if the policy intended to help prevent strikes among workers whose protests would cause a threat to public safety.
"If the need to apprehend criminals is so great as to treat law enforcement differently, surely the same rational applies to treat the prison staff equally to ensure that those convicted of crimes stay incarcerated," he wrote.
Reaction to the ruling on the eve of the July 4 holiday was swift.
“This ruling confirms that Act 10 created divisions among working people in Wisconsin, and reinforces the principle that workers must be treated equally under the law," Senate Minority Leader Melissa Agard, D-Madison, said in a statement. "While we celebrate this pro-labor ruling tonight, we must not stop until Act 10 is overturned and collective bargaining is restored for all public sector workers.”
Senate Majority Leader Devin LeMahieu, R-Oostburg, called the ruling "another example of courts legislating from the bench.
“Once again, the only way the Democrats can get their way is through activist judges dropping decisions on a holiday weekend when no one is watching.Unfortunately, if this decision stands, it will cost Wisconsin's hard-working families millions of dollars.”
Frost has also taken criticism after news last month surfaced of his name appearing on a petition to recall Walker.
Act 10 decimated public sector unions, but it was a windfall for taxpayers. At the time, Walker presented it as a way to address a projected $3.6 billion budget deficit, and the act’s passage ushered in more than a decade of Republican-led efforts to balance budgets without raising taxes. Increased contributions from public employees gave Republican lawmakers a foundation for their low-tax, small government strategy.
Wisconsinites have gotten cheaper government, lower taxes and a way out of the immediate budget crisis, the Wisconsin State Journal found in a 2021 series examining the law's impact on the 10th anniversary of its passage.
But public employees have born the brunt of the cost, as their compensation has lagged. The law has also exacerbated inequality across the state, the State Journal found.
As per-pupil education spending fell behind the rest of the nation, school districts responded by proposing hundreds of local referendums to allow them to increase local property taxes to garner more money for schools.
Act 10 supporters applauded the legislation for giving school districts more flexibility to recruit and keep teachers. But the additional flexibility can result in greater inequality, allowing school districts with more resources to offer more in starting salaries than those with fewer resources, typically in more rural, northern areas of the state.
Republican lawmakers also argue that lower taxes spurn economic growth, although in the decade after Act 10’s passage, Wisconsin’s economic growth generally lagged behind its neighbors and the nation, as did personal income.
This is a developing story and will be updated.
