Constitutional challenge to Act 10 is serious

On Friday, Judge Juan Colas issued a ruling that struck down Act 10, the “Budget Repair Bill,” on the grounds that the law violates the Wisconsin and U.S. Constitutions. In essence, he held that the law differentiates between entities that represent public employees in collective bargaining — imposing conditions on certain bargaining entities but not others – and that the State had failed to advance a sufficient justification for this disparate treatment. According to Judge Colas, the differential treatment of bargaining entities violated the First Amendment right of the affected unions to association and expression, and it also violated the Equal Protection Clause. Judge Colas also held that the law violates the Home Rule provisions of the Wisconsin Constitution by dictating rules for Milwaukee that the law did not apply to other municipalities.

The reaction to the ruling from the Walker Administration – that Judge Colas is a “liberal Dane County judge” — was as hollow as it was predictable. Some supporters of the Governor view the judiciary as an obstacle to their political agenda. Therefore, judges who do not agree with the Administration’s legal arguments become, in their mind, opponents who must be demonized (like Dane County Circuit Judge Maryann Sumi) or else targeted with frivolous disciplinary complaints.

Clearly, some supporters of the Walker Administration have a difficult time separating the political debate over Act 10 from the separate legal debate over its contents. Perhaps that is why they are so incredulous that the law could be subject to serious legal challenge. In fact, Judge Colas’ ruling should not come as a surprise to anyone. Unions have brought similar legal challenges to state laws elsewhere in the country, and judges have found similar First Amendment problems with those laws.

For example, this past June a federal judge in Michigan considered that state’s law which prohibited teachers’ unions from using the procedure of mandatory dues collection while permitting other public employee unions to continue the practice. In Bailey v. Callaghan, 2012 U.S. Dist. LEXIS 80281 (E.D. Mich. 2012), Judge Denise Hood applied rational review to the claim that the law violated the teachers union’s right to Equal Protection under the law, and applied strict scrutiny to the claim that the Michigan law violated the First Amendment. She granted the plaintiff’s motion for a preliminary injunction, finding that the union had demonstrated a likelihood of success on both constitutional claims.

Similarly, in United Food & Commercial Workers Local 99 v. Brewer, 817 F. Supp.2d 1118 (D. Ariz. 2011), a federal judge considered a challenge to an Arizona law that placed conditions on unions exercising dues check-off procedures while at the same time exempting public safety unions from those conditions. Judge G. Murray Snow held that the plaintiffs were likely to succeed in their claims that the law violated the First Amendment, and he granted the plaintiff’s motion for a preliminary injunction. He ruled that the state could pass a law eliminating the payroll deduction option for all unions, charitable organizations, and employee benefit organizations in Arizona, but that the Arizona legislature did not act evenhandedly and therefore its actions were subject to constitutional challenge.

In addition, earlier this year a federal judge in Wisconsin struck down certain provisions of Act 10 on the grounds that the law violates the First Amendment, whilst ruling that other portions of the law did not violate the First Amendment or the Equal Protection Clause. Judge William Conley’s ruling, in Wisconsin Education Association Council v. Walker, 824 F. Supp. 2d 826 (W.D. Wis. 2012), is something of a mixed bag, with both unions and the state government likely to be heartened by portions of his analysis. However, while Judge Conley views the legal claims advanced by the unions less favorably than the district court judges in the Michigan and Arizona cases, his opinion recognizes that constitutional challenges to the differential treatment of public employee unions must be taken seriously and that they can succeed in certain factual situations.

Some might argue that there is no constitutional right under the First Amendment to form a union or to compel the state to negotiate with a union, and that the above cases are somehow inconsistent with this precedent. However, as far back as 1983 judges have recognized that the lack of a right to bargain does not preclude the existence of a right to be treated evenhandedly:

I agree with the majority that plaintiff’s First Amendment rights are not violated by the statute in question. There is ample authority for the proposition that, in the public employee context, there is no First Amendment right to dues check-off or exclusive bargaining privileges. However, I would emphasize that all of the cases so holding involve state regulation of union activity that was content-neutral. None of the cases involve discrimination between different unions on the basis of either ideas or associational activity.

District Judge Gilmore (sitting by designation), concurring in part and dissenting in part, Brown v. Alexander, 718 F.2d 1417 (6th Cir. 1983). The Michigan Supreme Court also divided sharply on this issue in 1996. Michigan State AFL-CIO v. Employment Rels. Comm’n, 453 Mich. 362 (1996).

There is no constitutional requirement that the state government bargain with public employee unions at all. However, once the state government decides to bargain, it may not do so under rules that penalize membership in particular unions. By arguing that Act 10 applies different treatment to public safety unions than it does to more general public employee unions, the plaintiffs have raised legitimate constitutional claims that often have been decided by the courts on very fact-specific grounds. In this regard, Judge Colas’ ruling is neither exceptional nor unprecedented.

Objections to some of the specific details contained within Act 10 could have been raised and addressed if the legislation had been introduced and considered via the normal legislative procedures. Fixing any constitutional defects during the drafting process could have been a simple matter. Instead, the bill was introduced and passed without public scrutiny or debate. This litigation once again demonstrates the truth to the adage that “haste makes waste.”

I am sympathetic to the argument that hard fought legislative accomplishments should not be undone by after the fact court challenges. Judges should presume the constitutionality of statutes, unless challengers overcome such a presumption. Such judicial deference accords finality to the actions of the legislative branch. However, complaints about litigation undoing the hard work of the legislature ring hollow when they come from an Attorney General that ostentatiously joined in the litigation seeking to overturn ObamaCare.

The conservative “noise machine”– consisting of ersatz news media, think tank “experts,” and political campaign consultants — will no doubt seek to mold public opinion in this case. They will ignore the merits of the legal claims at issue and try to convince the public that any adverse ruling is the result of one partisan judge acting without legal authority. Of course, the consequence of such a strategy is to intimidate judges who might otherwise give legal claims against the State a fair hearing, and also to steadily undermine the public’s confidence in the legal system.

Members of the State Bar should refuse to play along with this game. By all means, we should feel free to criticize the reasoning of Judge Colas’ opinion. His application of the precedent to the specific provisions of Act 10 is fair game for critical analysis. However, anyone who has been following the nationwide litigation concerning public employee bargaining rights must recognize that Judge Colas was correct to take the plaintiff’s constitutional arguments seriously.

Ed Fallone is an associate professor of law at Marquette University in Milwaukee.

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