March 30, 2012

A federal judge strikes down parts of Wisconsin budget repair law.

The Milwaukee Journal Sentinel reports:
The court side with state officials in upholding limitations on what can be bargained, but found the two other provisions violated the union members' First Amendment rights, considering that the same rules did not apply to unions for public safety workers such as police and firefighters.

"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 U.S. District Judge William M. Conley....

The state's justification for allowing greater bargaining by public safety workers - avoidance of strikes - does not stand up as a rational basis for requiring other public worker unions to annually recertify by absolute majority, and denying them automatic dues deductions, the court said....
ADDED: Here's a PDF of the opinion. First, the court upholds the collective bargaining restrictions:

There is no dispute that a state may bar its public employees from engaging in any form of collective bargaining. The only question is whether a state may restrict the collective bargaining rights to one category of public unions while allowing full rights to another category. The answer to that question is surely “yes,” provided the classifications do not involve a suspect class and a rational basis exists for a state’s line drawing. Here, there is no suspect class involved and plaintiffs have failed to present sufficient evidence that exempting public safety employees from the new, expansive restrictions on collective bargaining bears no rational relationship to a legitimate government interest in avoiding strikes of those employees...
While the court concludes that the carving out of public safety employees under the Act is rationally-related to a legitimate government interest in avoiding disruptions by those employees, at least facially, it cannot 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....

This is not an ordinary case in any number of respects, but it is ordinary in the sense that political favoritism is no grounds for heightened scrutiny under the Equal Protection clause. Indeed, cases finding the true reason for legislation is pure animus directed at a particular group -- which cannot form the basis of a legitimate government interest -- typically involve powerless groups, like “hippies” in or gay and lesbian citizens of Colorado in Romer. Act 10 may cripple unions representing general employees, but these unions and its members are certainly not a powerless class.

Even assuming the lack of an adequate rationale for distinguishing between public safety and general employee unions, the Equal Protection Clause does not require that a state institute changes wholesale. As discussed, the State of Wisconsin could have eliminated all rights of public employees to unionize. That it chose to implement changes piecemeal, for one class of public unions at this time, while neglecting others, is not a constitutional violation. “The prohibition of the Equal Protection Clause goes no further than invidious discrimination.” Williamson v. Lee Optical of Okla., 348 U.S. 483, 489 (1955).
But the line between public safety employees and other public employs is not supported by a rational basis when it comes to the different treatment with respect to annual recertification:
[T]he court finds this onerous recertification provision would typically pass the admittedly low bar of rational basis review, but for defendants’ failure to articulate and this court’s inability to posit, how an annual, absolute majority vote by a wholly-voluntary union could rationally advance a reasonable purpose...
As for and the withholding union dues, the court said there was no rational basis for treating this 2 different groups of state workers differently.Because unions speak for workers, the court thought that the state's failure to collect dues for the unions presented a First Amendment free-speech issue where the 2 different classes of unions were treated differently.
Act 10 expressly exempts public safety employees from the prohibition, representing “a governmental ‘attempt to give one side of a debatable public question an advantage in expressing its views to the people.’”
The court thought that the governor and legislature were essentially subsidizing the speech that favored them and making it harder for voices on the other side to collect the money that they could use against them. The court saw "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."


Michael K said...

Is that one of the judges that signed the recall petition ?

Just asking.

Q said...

Remind me again, how did judges get the power to strike down legislation on the grounds that, in the judges opinion, it was not rational?

garage mahal said...

Fridays are never dull in Wisconsin it seems lately.

GAB certifies recalls
Portions of Act 10 struck
Republicans announce fake Democrats in all six recall elections
Tom Barrett announces his bid for governor

David said...

No rational basis?

That's really and amazing finding for a judge.

What he means is, "No rational basis based on my assumptions, predilections and bias."

I predict reversal.

Rob said...

Wow, the unions have a right to have dues removed from their members paycheck? Is that not an amazing concept?

Harsh Pencil said...

Rational basis is supposed to be an extremely low hurdle for a government. All it means (in my understanding) is that there exists SOME (not necessarily good) justification for the law.

This will be overturned on appeal.

Rob said...

members'paychecks, even.

Automatic_Wing said...

Not really understanding what aspect of the First Amendment was violated here.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Anyone? Bueller?

purplepenquin said...
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Mark said...

Garage, you forgot Kelly Reinfleish's motion to move her trial to Columbia County was denied.

Will it make her talk?

Chip S. said...

@Maguro--He's an Obama appointee. A demonstrated inability to understand the Constitution--along with a willingness to make shit up--is a feature, not a bug.

Anonymous said...


garage mahal said...

Garage, you forgot Kelly Reinfleish's motion to move her trial to Columbia County was denied

Yea I missed that one. This is very interesting as well. Amazing how the same figures appear over and over.

rhhardin said...

It's Roman law.

Anonymous said...

Spring certainly has come early to Wisconsin, things are heating up. Mark Block, once again.

Bender said...

The unions can speak and petition the government all they want, but the First Amendment does not compel the government to enter into collective bargaining agreements on anything. The First Amendment only says: "government may not do this," it does not say, "goverment must do that."

But what do you expect from an Obama appointee?

garage mahal said...

"Obama appointee".

Wow, real original.

Chip S. said...

@gm, You're making even less sense than usual.

Wince said...

Cops carry guns and are the ones called to quell union unrest.

Sounds like a rational basis to me.

edutcher said...

I'm with Maguro.

How does having somebody take money out of your pocket, putting it in someone else's, and knowing they're going to keep it in their pocket constitute Free Speech?

Or is this one of those religious mandate things again?

leslyn said...

Huge! Huge, huge HUGE! This is what we've been fighting for!

I'm surprised at the First Amendment argument also, but remember the argument came from the parties.

Althouse doesn't tell us more about the opinion, but perhaps the First Amendment argement was based on freedom of association? Perhaps there was an Equal Protection argument too. I'll be interested to find out.

In any case, the state's argument that it was necessary to preserve union rights for fire and safety but not for others, because they might strike, is a hoot (besides not rational).

The state conveniently ignores:

The "Budget Repair Bill" initially removed all union rights for everyone, EXCEPT the State Patrol. Someone will ask me for a cite, and I don't have it on this computer, but if you really need it, you can also look for it yourself.

Shortly before the Budget Repair Bill was introduced, the Fitzgerald's daddy was appointed State Patrol commissioner. Daddy Fitzgerald thereafter directed the State Patrol to do the notorious (and illegal) stalking of Democrats' homes. The State Patrol was at that time the ONLY agency exempted from the union-busting provisions of the Budget Repair Bill.

However, even rank and file State Patrol officers protested this, as well as the head of the Wisconsin Law Enforcement Association (which is comprised of state law enforcement officers), who is a State Patrol inspector.

"We are currently experiencing all kinds of backlash from our membership because of what I consider to be cherry picking of our union by the governor," [Tracy Fuller] said. The Wisconsin State Patrol is Local 1 of the WLEA. As president of the WLEA, Fuller also wrote a letter to Governor Walker protesting the removal of union rights from state employees.

You've seen the police and firefighters protesting. Overnight, the Budget Repair Bill was changed to preserve union rights for police and firefighters.

But before that, the only ones who had their union rights preserved were Daddy Fitzgerald's State Patrol.

Anonymous said...

Leslyn, my suspicion is that it was the Equal Protection argument. I'm not a lawyer, just a hunch.

Anonymous said...

Katy Meter Lounsbury, one of the lawyers arguing this case is a personal friend of mine and I am honored to say she represented me at one time.

Congratulations Katy!!

n.n said...

This just means that all civil servants need to be treated equally and their unions abolished. The integrity of public servants cannot be tied to fiscal incentives or special privileges greater than the people they serve. Their capacity to bypass the representative process and exploit the taxpayers directly needs to be ended. The present arrangement only serves to sponsor corruption of authoritarian interests.

Revenant said...

The irony is that the same people who mock "corporations are people" will applaud the idea that unions (i.e., corporations) can have rights. :)

Anyway, hopefully this will provide the impetus to strip those powers from police and firefighters' unions too.

Anonymous said...

Revenent, good luck with that. Ohio?

leslyn said...

And Indiana?

leslyn said...

More: Three provisions of the law were argued against by the unions on Equal Protection Grounds. It appears that two, the dues deduction and annual certification, were also argued on First Amendment grounds. It was those two provisions which were struck down, on the basis of speech and freedom of association grounds.

For more, See Wisconsin Education Association Council, et al, v. Scott Walker, Governor, et al, Opinion and Order, 11-cv-428-wmc (W.D. Wis, 3/30/12).

leslyn said...

@Chip s. Judge Conley was Order of the Coif and on the Wisconsin Law Review in law school. He was later a partner at Foley and Lardner. (In other words, he's no dummy.) He was confirmed unanimously by the Senate, 99-0.

leslyn said...

EDH said,

"Cops carry guns and are the ones called to quell union unrest. Sounds like a rational basis to me."

Not quite getting your connection. But, if the state were being honest, perhaps it might have admitted that it excluded the Capital Police and the UW Police (Local 2 of the WLEA) from the original exemption from bargaining restrictions that was granted the State Patrol.

Kind of shoots down whatever rational basis you had, pardon the pun.

Michael K said...

"GAB certifies recalls
Portions of Act 10 struck"

Please throw me in that briar patch ! Democrats will rue the day they took on Walker. I suppose I should say public employee unions but what's the difference?

Ann Althouse said...

I've linked to the opinion now and added some key excerpts.

The parts of Act 10 that were struck down had to do with the difficult annual recertification and ending withholding of union dues in employee paychecks.

The court thought there was no rational basis for treating the public safety employees different from other public employees.

The restrictions on collective bargaining -- which I believe were the most object to provisions -- were upheld.

Michael K said...

"(In other words, he's no dummy.)"

Neither was Mussolini. Just sayin'

ignatzk said...

So what's next? Can this go to a higher court on issues other than procedural?

Wince said...

However, Conley found that the two other changes - annual recertification and a ban on automatic dues deduction - violated the First Amendment rights of the affected workers.

Making union dues compulsory doesn't violate the First Amendment and free association rights of the affected workers, but making the dues voluntary does?

"The court would be remiss not to at least note the likely burden the annual recertification process imposes on the members' speech and association rights," he wrote.

Seems to me annual recertification would increase the free speech and free association rights of individual workers vis-a-vis the union.

Unknown said...
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Unknown said...

====the Fitzgerald's daddy was appointed State Patrol commissioner. Daddy Fitzgerald thereafter directed the State Patrol to do the notorious (and illegal) stalking of Democrats' homes.=====

You are probably referring to the legal enforcement of an order resulting from the Fleeing fourteen staggering down to nightclubs in Illinois. Real winners not staying to negotiate but subverting the majority's vote.


Pressure ratcheted up on absent Senate Democrats on Thursday, as they were found in contempt by GOP senators and Gov. Scott Walker said he will start sending layoff notices to state workers Friday if the standoff over his budget-repair bill isn't resolved.

Along with the finding of contempt came an order that law enforcement detain Democrats and bring them to the Senate chambers

You libs cant write two paragraphs without resorting to the Big Lie

leslyn said...

Relevant said,

The irony is that the same people who mock "corporations are people" will applaud the idea that unions (i.e., corporations) can have rights. :)

I think you'd enjoy reading the opinion. Citizens United was cited numerous times in support.

Anonymous said...

Leslyn, I knew there would come a day when Citizens United would include unions freedom of speech. If a corporation is a person, what is a union? Again they want it both ways, can't have it both ways.

KC said...
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KC said...

OK - I'm not understanding this...So does this mean that the unions that chose to not re-certify are in effect "certified" and can negotiate on behalf of their members immediately? Or do they still need to re-certify, but by the same process (is there one?) used by the so-called Public Safety unions?

Is the composition of the union membership affected? Specifically, I believe membership became voluntary when Act 10 went into effect. Does the striking of the payroll deduction "stuff" mean that only voluntary members will have dues auto-deducted? Or will all employees for whom the union could argue it is representing in the collective bargaining process be forced to pay dues via auto-deduction?

leslyn said...

Unknown said,

quoting Leslyn,

"Daddy Fitzgerald thereafter directed the State Patrol to do the notorious (and illegal) stalking of Democrats' homes."

Unknown then said,

You are probably referring to the legal enforcement of an order resulting from the Fleeing fourteen staggering down to nightclubs in Illinois.

The order was not lawful. The state is fortunate that no detentions or arrests occurred.

Wisconsin Constitution, Article IV:
"SECTION 15. [Exemption from arrest and civil process.] Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session."

The Wisconsin legislature belatedly recognized this.

Curious George said...

Public Unions: "Great news! We can have your dues automatically deducted from your paychecks again!"

Public Union Worker: "Zzzzzzzzz"

Public Unions: "Hey wake up! It's almost time for your break! And again, we can have your dues automatically deducted from your paychecks again!"

Public Union Worker: "So we don't have to pay into our pension now"?

Public Unions: "Uh, no. You sill have to do that. We can have your dues automatically deducted from your paychecks again!"

Public Union Worker: "But we don't have to pay for a part of healthcare, right?"?

Public Unions: " still gotta do that too"

Public Union Worker: "Well, you're going to get us a big ole raise to cover that now?"

Public Unions: "Sorry, we can only get you cost of living...if we're lucky."

Public Union Worker: "Well, we can negotiate other provisions so we can shift stack again?"

Public Unions: "Uh, again, sorry."

Public Union Worker: "So nothing has really changed for us. What's so great about this"?

Public Unions" "Well, we know what a pain it is to write out a check every month for your dues, because you haven't been doing it. So now we can have it come right out of your paycheck! You just need to sign this form."

Public Union Worker: "Zzzzzzzzz"

Bender said...

"No State shall . . . deny to any person within its jurisdiction the equal protection of the laws."

The rights of a union, being an association of members, are derivative of the rights of its members. And those members have diverse interests, they are not of a single mind on all things. For that reason, a union has a duty to not discriminate, but to act for and advocate for any given member.

Again, any equal protection rights the union has are derivative of the personal equal protection rights of its members. As such, it cannot discriminate against the equal protection rights of any of its members.

A union certainly cannot discriminate against the equal protection interests of a majority of its members. On its face, though, the annual recertification requirement protects these rights of individual members who may no longer wish to be unionized, without compelling them to go through the onerous process of seeking decertification.

Far in excess of a rational basis, protecting the rights of these employees/union members is an important, if not compelling, government interest. Indeed, the court had before it three such members who wanted the law upheld, but the court refused to let them intervene.

leslyn said...


See Judge Conley's orders 12, 13, 14 and 15 on page 38 of the opinion and order.

The annual recertification requirement is immediately ended.

Payroll deduction of dues will commence by May 31, 2012 in order to give the state time to ready the payroll system, and for the state to apply to the Seventh Circuit for a stay of the order if the state so decides.

Union dues are not mandatory.

leslyn said...

Plaintiff unuions also had amici asking to intervene, but were denied.

Bender said...

With respect to the dues, certainly a union may engage in various speech activities in addition to their primary function of collective bargaining agents. And those activities cost money, for which they may assess dues.

But the union's right to assess dues to fund their speech does not extend to compelling government to act as dues collector through wage withholding. There is no First Amendment requirement whatsoever that government seize a portion of the wages that are lawfully due the employee and give it over to a third party, such as the union.

If the unions wish to fund their speech through dues, they are perfectly free to mandate that members pay the dues themselves.

Bender said...

leslyn -- the Wisconsin Law Enforcement Association and its members seeking to intervene as plaintiffs were redundant to the plaintiff unions.

The three seeking to intervene as defendants, though, were adverse to the unions and had unique personal interests that the state did not share and could not adequately represent and advocate.

Bender said...

Apparently this is the wisp of smoke upon which the court bases its ruling that, even though government has no obligation to act as dues collector through wage withholding (and thereby also provide a subsidy to the speech), the failure to withhold violates the First Amendment -- a perceived favoritism of some unions over others, even though the actual text of the law is completely neutral.

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. Moreover, Supreme Court jurisprudence and the evidence of record strongly suggests that the exemption of those unions from Act 10’s prohibition on automatic dues deductions enhances the ability of unions representing public safety employees to continue to support this Governor and his party. (p.30) . . .
Absent evidence of viewpoint discrimination, perhaps it is enough that 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. (p. 36)

Bender said...

Appearances and suggestions. Not evidence. Not the text of the law. Nothing but appearances and suggestions -- something doesn't smell right to the judge. And that is enough for him.

Not law, but nothing more than a feeling, an impression.

leslyn said...

The Wisconsin motto is "Forward!" So, Bender, Forward! to the Seventh Circuit.

Good night.

Bender said...


KC said...

Is the judge's claim that only unions that supported Walker received favourable treatment correct? I thought only the Milwaukee Police Association, Milwaukee Professional Firefighters Association, West Allis Police Association and the Wisconsin State Troopers supported him while the actual list of unions covered under the "Public Safety" designation was much larger?

KC said...

FWIW in partial answer to my first set of questions: Act 10 does away with "fair-trade" dues collection from non-union members. Since this was not affected by the judge's ruling, only members in good standing will presumably have their dues automatically deducted.

leslyn said...


What's a "non-union member?" Just want to be clear what you're talking about.

The judge is correct about the supportive unions. See my posts about the State Patrol @ 6:28p.m. and 8:39 p.m.

Act 10 as it was passed has the more inclusive terminology, "public safety."

However--Act 10 also permitted municipal unions of public safety officers to collect "fair share" dues--which in effect gave those unions the ability to continue to exist and prosper. (They wouldn't, for example have to lay off any lobbyists--an issue which came up in the case re dues collection.)

Since Milwaukee is by far the state's largest city (it is sometimes referred to colloquially by Wisconsin lawyers as "the State of Milwaukee" because of the numerous laws and exceptions that apply only to it), the Milwaukee police and firefighters unions are by far the largest municipal unions of their type in the state. So the inference that they were treated specially is, I think, supported.

In fact, I thought it odd that Act 10 was reaching down to municipal employees, rather than limiting its scope to state employees. But the Act also meddled with local school boards, so....

SGT Ted said...

If political favoritism is grounds for heightened scrutiny under the Equal Protection clause, Public Employee Unions would be outlawed.

SGT Ted said...

Well, then its time to pass a law banning dues deduction from all PE union members paychecks.

KC said...


"Non-union member" was my attempt to capture the group of employees who under the pre-Act 10 law did not want to be part of the union and did not sign the union card yet were forced to pay union dues anyway. The unions argued that since they were in effect representing these employees during the collective bargaining process, the union should receive dues from them. As a result dues were automatically deducted from your paycheck when you were hired into a position represented by a particular union regardless of whether you signed the union card. However if you wanted to make use of union resources, e.g. to file a grievance against another union member, for representation at a pre-disciplinary hearing, etc. they made you sign the card first.

My current understanding is that Act 10 made union membership voluntary. Classes of positions within the State are no longer assumed to be automatically represented (except the Public Safety ones.) If you chose to be a member your dues can be automatically deducted from your paycheck by May 31st. If you chose to not be represented, the union can't argue that they are in effect representing you anyway (and won't be able to automatically deduct dues for you).

If this is correct, then the only employees affected by this part of the decision are only those who chose to remain union members but had to arrange for payment of union dues themselves. In effect, this changes very little except that the State will now provide and pay for the Union's dues collection process.

KC said...

I should add that my experience has been with the State personnel system. I know nothing of the local/municipal ones...

KC said...


I assumed that the reason Act 10 reached down to municipal employees was because pre-existing law did so as well. Do you know if this is in fact true? Or is this something "new".

leslyn said...


Have you looked at Act 10? It's a bee-atch to decipher. Which is why I'm not going to try to answer most of your questions.

You said,

"If this is correct, then the only employees affected by this part of the decision are only those who chose to remain union members but had to arrange for payment of union dues themselves. In effect, this changes very little except that the State will now provide and pay for the Union's dues collection process."

No, I must disagree. The dues deduction, with the abolishment of annual union certification, allows the unions to survive. Although the unions lost on fair-share for state employees, it is still extraordinarily easier to collect dues payments through payroll deduction from union members. Thus, the unions will still have a treasury, albeit a smaller one.

Similarly, annual certification was an onerous burden on union survivability. That's why these provisions in Act 10 were peculiarly "union-busting."

In other words, unions might not end up as healthy as they were before Act 10, but no one is about to pull the plug on their life support.

I would have to look again at Act 10 to determine if the provisions affecting municipalities were pre-existing. I just don't remember. But it's Saturday and I don't feel like wading into that. Sorry.

I will say that I haven't read the opinion closely enough with Act 10 to determine if the fair-share deductions for municipal public safety unions may be retained. I don't recall if the opinion addressed municipalities, or if the language was broad enough to cover them, or if they are severable.

There will be many things still to be worked out in the remedy. And these will be affected by whether there is a future decision on the case by the Seventh Circuit, and what happens in the recall elections June 5.

Consider this: even if Walker survives the recall, the balance of power in the legislature can change. I suspect it will change. And then you have a new ballgame, because either house can introduce legislation, under the Wisconsin Constitution. How will Walker (assuming he's still governor) decide to use veto power? Will the legislature become a check and balance? Will more people decide to "just get along" with each other?

There's a lot of possibilities up for grabs.

KC said...


I did try to read both decisions. Not being a lawyer, I quickly fell asleep which is why I'm turning to people with a stronger legal background to help me understand this...

leslyn said...

LOL! You weren't the only one struggling to hang in there with Act 10.