Dane County judge strikes down key parts of Act 10, restoring public union bargaining rights
MADISON, Wis. (CBS 58) -- A Dane County judge ruled Monday a Wisconsin law that barred public worker unions from collectively bargaining was unconstitutional, and he rejected the Republican-controlled Legislature's request to redefine a key distinction within the law.
The law, Act 10, was a signature achievement for former Gov. Scott Walker and Republicans shortly after taking full control of state government in 2011. The law put restrictions on what public employee unions are able to negotiate with government agencies.
Act 10 applied to most government workers, but it made an exception for police and fire unions. The law allowed "public safety employees" to keep their bargaining rights while taking them away from general public workers.
Dane County Circuit Court Judge Jacob Frost ruled in July that distinction violated the state constitution. In his ruling Monday, Frost rejected the Legislature's effort to have Frost only strike down the law's definition of "public safety employee" while keeping the distinction itself in place.
"Act 10 as written by the Legislature specifically and narrowly defines 'public safety employee.' It is that definition which is unconstitutional," Frost wrote. "The Legislature cites no precedent for this bold argument that I should simply strike the unlawful definition but leave it to an agency and the courts to later define as they see fit."
The decision is a significant win for teachers unions, which were at the front of the massive 2011 protests. Peggy Wirtz-Olsen, president of the Wisconsin Education Association Council, said ending Act 10 would help recruit new teachers.
Wirtz-Olsen, a high school teacher in Marshfield, said if Monday's ruling were upheld, it would become much easier for educators to organize. She specifically pointed to the section of Act 10 that required public workers unions to have annual elections certifying their union.
"We're tremendously concerned about the loss of educators in the teaching profession and having a say in our workplace and what's happening in our classrooms, and quite honestly, our working conditions are our students' learning conditions," Wirtz-Olsen said. "So this is a huge step forward."
Walker posted a video to the social media site, X, Monday afternoon calling the decision "an early Christmas present to the big government union bosses." Walker maintained the law helped local governments save money while making it easier for school districts to keep and reward their best teachers.
"More than budget savings, our reforms allowed schools to staff based on merit and pay based on performance," Walker said. "That means we could put the best and the brightest in the classroom. You see, collective bargaining is not a right. It is an expensive entitlement."
Republican legislative leaders vowed Monday they will appeal Frost's ruling. Both Assembly Speaker Robin Vos and Senate Majority Leader Devin LeMahieu noted past challenges to Act 10 were unsuccessful.
“This lawsuit came more than a decade after Act 10 became law and after many courts rejected the same meritless legal challenges," Vos said in a statement. "Act 10 has saved Wisconsin taxpayers more than $16 billion. We look forward to presenting our arguments on appeal.”
One of the most memorable moments during the Act 10 fight was 14 Democratic state senators fleeing to Illinois in an effort to block the Senate's vote on the legislation. State Sen. Chris Larson (D-Milwaukee), who was one of the lawmakers who went to Rockford, said in an interview Monday the ruling was long overdue because the law was fundamentally unfair.
"The divide of saying that some workers are favored to be able to have collective bargaining while some employees aren't was just based off of Scott Walker's political favoritism," Larson said. "And just helping those that had helped him while punishing those that went against him."
Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty, argued in support of Act 10 more than a decade ago. The state Supreme Court and a federal appeals court both upheld the law in 2014.
Esenberg said lawmakers separating classes of workers was a form of political dealmaking, and the courts should allow voters to have the final word on whether that's permissible.
"You have to give them breathing room to make these distinctions and to enter into compromises with one another," Esenberg said. "And I just think this type of scrutiny is just inconsistent with the way both federal and state courts have tended to handle these equal protection claims."
With a liberal majority on the Wisconsin Supreme Court after the 2023 election of Justice Janet Protasiewicz, the state's highest court now would appear likely to uphold Frost's ruling.
Ben Wikler, chair of the Democratic Party of Wisconsin, said he believed the 2025 Supreme Court race will largely revolve around what President-elect Donald Trump does once he's back in the White House. Wikler suggested 2025 could mirror Wisconsin in 2011 if Mr. Trump enacts controversial policies such as tax cuts that disproportionately benefit the wealthy.
"A use of an election that was largely fought on other things," Wikler said. "To suddenly try to rip the country apart and use that to drain public services that benefit everyone and working people across the country and enrich the super rich."
The case puts even more attention on the spring 2025 Supreme Court election. Liberals currently have a 4-3 majority on the court, and the balance of power will once again be stake. Liberal Justice Ann Walsh Bradley is not seeking re-election, and as of now, the spring contest will be between conservative Brad Schimel and progressive Susan Crawford.