Wisconsin judge tosses notorious anti-union Act 10 as unconstitutional

In this Feb. 17 file photo protestors pack the rotunda at the state Capitol in Madison, Wis. to protest Act 10. | Andy Manis/AP

MADISON, Wis.—In a blistering ruling against Wisconsin’s Republican state legislative majority and, though he did not name him, former radical right GOP Gov. Scott Walker, Dane County (Madison) Circuit Court Judge Jacob Frost threw out Walker’s anti-union Act 10 as violating the state Constitution.

Unions and citizens who brought the suit, starting almost two years ago, cheered, though Christina Brey, communications director for the Wisconsin Education Association, the state’s NEA affiliate, admitted Frost’s ruling “won’t go into effect right away.”

That’s because the lawmakers will probably appeal Judge Frost’s ruling upwards to appellate courts and the state Supreme Court. But they’ll have to do it on their own time, with their own lawyers and on their own dime.

Democratic Gov. Tony Evers, a former state Superintendent of Public Instruction who defeated Walker six years ago, and the state Attorney General are Democrats sympathetic to workers, not to the ultra-right lawmakers.

“Nearly 14 years after Scott Walker, in his own words, ‘dropped the bomb’ on Wisconsin public employees, Wisconsin workers can celebrate as the judicial branch restores collective bargaining rights to public employees. Declaring Scott Walker’s union-busting Act 10 unconstitutional and void, over 60 sections of the 2011 anti-union law have now been struck down,” state AFL-CIO President Stephanie Bloomingdale said. The sections that remain dealt with the state budget, not unions.

“Act 10 has done great harm to working people in our state and great damage to public services our families depend on every day. It 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 union freedoms…will strengthen Wisconsin’s middle class, lift up the voices of workers, and lead to better public services for our communities.

“But we know the fight for workers’ rights is a marathon, not a sprint. There will be as always appeals and obstructions along the way. Working people in Wisconsin will head into 2025 with a renewed sense of solidarity and a reinvigorated commitment to organizing so every worker who wants to be in a union can freely do so. It’s time to turn the page on Scott Walker’s union-busting.”

Pulled no punches

Judge Frost pulled no punches in repeatedly declaring on December 2 that the legislature not only violated the state Constitution by denying workers equal protection of the laws but that it didn’t have a legal leg to stand on when it tried to get him to throw out the unions’ lawsuit now or in a prior ruling.

Act 10 was a landmark in recent labor history. It also showed the impact of the 2010 nationwide Republican/Tea Party landslide. Combined with deindustrialization, Act 10 devastated union numbers and density in Wisconsin, the state where AFSCME was founded.

Federal Labor Department annual calculations of union members and density show that in 2010, before Walker was elected, one of every seven Wisconsin workers, 355,000, was a union member. Last year, there were 205,000, or one in every 13.5. The national rate was one in nine and a half.

“The state’s education workforce is in crisis as 40% of teachers leave in the first six years because of low wages and unequal pay systems,” the NEA’s Wisconsin affiliate reports. “The conservation warden program is fraught with unfair and disparate treatment of workers; and there is a 32% vacancy rate for corrections officers.”

Act 10’s looming passage almost 14 years ago brought more than 100,000 unionists and their allies, led by then-AFL-CIO President Richard Trumka, into the streets of Madison, the state capital, in subzero conditions and battling a blizzard. They occupied and ringed the Wisconsin Capitol building in loud, impassioned but peaceful protest. But the state legislative majority turned a deaf ear.

Act 10 was one of the first and most virulent instances of the power of the secretive corporate cabal, the American Legislative Exchange Council. That clutch of plutocrats and lawmakers drew up the model anti-union bill. Its state legislative puppets pushed it and Walker inserted it into a budget bill.

Judge Frost’s ruling was on the lawmakers’ second—and, he said, final—try to preserve Act 10. The legislature lost the first time around, too, the judge said, when it argued the suit should be tossed and the law upheld. Judge Frost said “no” to them then, and in legal language, he said “no” again. The anti-worker law must be thrown out, he declared.

The crux of Judge Frost’s ruling was Walker split unionized state workers into two groups after his first election in 2010: “Public safety employees” unions i.e. cops that supported his campaign, and everybody else, who didn’t.

The “public safety employee” unions kept their right to collectively bargain, to have dues checkoff, to negotiate all aspects of a contract, including raises and benefits and—once they won state-run recognition elections—to be safe unless members voted them out.

The other public worker unions, for nurses, other state workers, county workers, teachers, custodians, park district workers and more, lost all those rights. They must stand for recertification every year, by a majority of all members, not just those voting, they can bargain over pay, but are limited by the inflation rate, and dues checkoff is banned. They can’t bargain over benefits.

Such discrimination is unconstitutional, Judge Frost wrote.

Court presses legislature

“The court pressed…the legislature on each of the reasons they put forth as providing a rational basis for the law’s distinction between general employees and the select few public safety employees” exempt from the anti-union law. “I asked for more details and engaged in questions, answers, and discussion with counsel to try to justify any rational basis for the law. No party requested additional time to try to identify additional relevant information before I decided the legal issues.

“The legislature now tries to take a second bite at the apple. A party [the legislature] cannot present some arguments, wait for a decision on the merits, then try to further develop its prior arguments with details never presented” before. “The legislature does not hide its effort to reargue the issues…The legislature never points to any error of fact or law in my July decision” against the Republicans’ first try at throwing the unions out of court.

The lawmakers “never uses terms that form the basis of a motion for reconsideration. Instead, the legislature repeats its disagreement. This is entirely inappropriate.”

Other unions joined the suit to toss Walker’s draconian anti-union law: the Abbotsford Education Association (NEA), the Beaver Dam Education Association/NEA, AFSCME Local 47, AFSCME Local 1215, SEIU Wisconsin, the Teaching Assistants Association (AFT) Local 3220 and Teamsters Local 695. And other unionists joined Bloomingdale’s cheers:

Betsy Ramsdale, a Beaver Dam Unified School District teacher and NEA local leader, called the decision “a long time coming.

“We’re confident that, in the end, the rights of all Wisconsin public sector employees will be restored,” she said. “Educators’ working conditions are students’ learning conditions, and everyone benefits when we have a say in the workplace.”

“Unions allow workers to make a difference in the lives of people. Act 10 stripped workers of the ability to speak up and be heard,” said AFT Wisconsin President Kim Kohlhaas. “I’m thrilled this law has been ruled unconstitutional.”

If higher court judges agree with Judge Frost, “Employees will have the opportunity to create and join unions and advocate for what will help improve public education, higher education and the lives of our citizens…Workers must have the right to partner with their employer and negotiate fair wages, benefits and working conditions.”

“This decision is a big deal,” said national AFT President Randi Weingarten, a New York City civics teacher with a law degree. “Act 10 stripped workers of the freedom and power to have a voice on the job to bargain wages, benefits and working conditions. It’s about the dignity of work. When workers have a voice, they have a vehicle to improve the quality of services they provide to students, patients and communities.

“Former Gov. Scott Walker tried to eliminate all of that, and it hurt Wisconsin. Now, many years later, the courts have found his actions unconstitutional.

“There are many fights still to come, but this decision stands to make a huge difference for educators, nurses and public service workers and the people they proudly help each and every day.”

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CONTRIBUTOR

Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.