The Western District of Wisconsin issued its much anticipated opinion in WEAC v. Walker yesterday on the constitutionality of Wisconsin Act 10, the public-sector anti-collective bargaining bill that was enacted into law last June after a monumental political fight. Of course, Act 10’s passage continues to have ramifications as Governor Walker was officially subjected to a recall election yesterday (after some 900,000 Wisconsites signed petitions to recall him), with an additional four Republican state senators and the lieutenant Governor also being subject to recall.
I just read this Act 10 decision and my conclusion is: good, but not great.
Most of Act 10 survives on equal protection grounds, the court buying the Walker Administration’s hard-to-believe argument that it only applies to non-public safety employees, and not public safety officials, because of concerns that public safety employees would be needed if the other public employees went out on strike (even though such strikes would be illegal under Wisconsin law).
Nevertheless, in a clear victory for the public-sector unions in Wisconsin, the onerous recertification and anti-dues check off provisions, which again only applied to non-public safety employees, were enjoined on both equal protection and First Amendment grounds. The court found absolutely no connection between the Walker Administration’s purported justifications for treating these two groups of public employees differently and the need for these two punitive provisions. Indeed, the court goes out of its way to all but say that the Walker Administration passed these provisions as political payback for those public safety unions that supported Walker in the 2010 election.
Special kudos to Joe Slater (Toledo), who was cited twice by the court: once for his contribution to the Marquette Law Review Symposium in 2010 (Joseph E. Slater, Lessons from the Public Sector: Suggestions and a Caution, 94 MARQ. L. REV. 917, 927 n.65 (2011)), and once for the affidavit he submitted on behalf of the plaintiff unions, stating that not a single other state had such an onerous recertification provision.
Cross posted at Workplace Prof Blog.
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