There is no ‘window’ to avoid Act 10

In the wake of the District IV Court of Appeals order denying the State’s request to stay the Dane County judge’s decision declaring parts of Act 10 unconstitutional, labor advocates have made incorrect claims about the effect of that decision.

Mary Bell, president of WEAC, claims the decision “sends a strong message to school districts that now is the time to act and bargain in good faith with local associations.” State Senator Jon Erpenbach claims the decision creates uncertainty and leaves “school districts and municipal employees without clear direction.” United Wisconsin claims the decision “continue[s] the stay put in place by Judge Juan Colas and bar[s] enforcement of Act 10.”

All three of those assertions are incorrect.

As to United Wisconsin, Judge Colas did not put a stay in place; he did not enjoin or bar enforcement of Act 10. Nor did the Court of Appeals create or continue a “window” for other local units of government to ignore the requirements of Act 10. The Court of Appeals confirmed the long-standing rule that a decision of a circuit court has no precedential value, affirming WILL’s advisory release from a month ago that any unit of government that renegotiates or reopens a union contract in a way that violates Act 10 does so at its own risk.

The Court of Appeals cleared any uncertainty, stating, “[T]he [unions] argue that the circuit court’s decision here is binding statewide. But we reject out of hand the proposition that the circuit court’s decision has the same effect as a published opinion of this court or the supreme court.” The Court of Appeals went on to note that in a lawsuit brought in another county, the judge there would have the discretion to reach the same conclusion as Judge Colas, tacitly acknowledging that such a court could also reach the opposite conclusion. Thus, any local government negotiating with a union in violation of Act 10’s restrictions runs the risk of a taxpayer bringing a lawsuit and a court ruling that they violated Act 10.

As always, WILL remains on the lookout for any unit of government that does not follow the law.

Rick Esenberg is the founder and president of the Wisconsin Institute for Law & Liberty (WILL), a nonprofit, public interest law firm promoting the public interest in constitutional and open government, individual liberty and a robust civil society. He also is an adjunct professor of law at Marquette University.

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