The 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.

This Post Has 14 Comments

  1. Joseph Devereaux

    As I read this opinion-blog I am left with one conclusion . . . if Act 10 applied to ALL public safety/municipal unions unilaterally, we wouldn’t be in this endless string of legal challenges right? It’s time Governor Walker made Act 10 apply to all (above) and be done with it.

  2. Jerry Rhoden

    I thought Act 10 DID apply to all public-sector unions. If so, and if the state is not allowed to differentiate between public- and private-sector unions, then this decision would seem to beg Gov. Walker and company to extend Act 10’s provisions to private unions as well.
    In which case, Right to Work would indeed be just around the corner.

  3. James Degenhardt

    Joseph, so you think Walker should force Police and Firefighters to pay for their own health insurance, when their jobs require them to risk their lives every day?

    How many people do you think would become firefighters if they only got to take home HALF of what they get now, and have to pay their own medical besides?

    Walker violated the Law, the Constitution, and the Will of the People of Wisconsin when he FORCED this bill through.

  4. Sal Johnston

    I think politically, Walker did not want it to apply to public safety workers because the messaging is bad. The public likes to feel like the police and firemen are well taken care of and there is usually strong backlash against cutting salaries to these types of state workers. And he is, after all, a college drop out and former marketing guy, not a law scholar.

  5. Mike Macco

    That’s what I was wondering Joseph. I suppose that might be forthcoming.

  6. Cathi Meinecke

    Scott Walker knows that he cannot do what Mr. Devereaux suggests in the last comment. The reason Act 10 was not applied to all public safety/municipal unions in the first place was to divide and conquer. He knew that if he did the reaction would not only be the protests that happened in Madison but a statewide Blue Flu with the police force.

  7. Bart Torvik

    Interesting post. As I read the opinion, though, Judge Colás does not rely on the distinction you make between the public safety unions and other public-sector unions to find a violation of the right to free association. Here is the crux of his ruling:

    “Employees may associate for the purpose of being the exclusive agent in collective bargaining only if they give up the right to negotiate and receive wage increases greater than the cost of living. Conversely, employees who do not associate for collective bargaining are rewarded by being permitted to negotiate for and receive wage increases without limitation.” (Page 15.)

    As he puts it, this is a distinction between “1) general municipal employees who are represented by a labor organization in bargaining and 2) general municipal employees who are not.” (Page 17.) Based on this distinction, he concludes that Act 10 imposes an impermissible burden on the freedom to associate because it penalizes the first group (people who join unions) “solely because of that association.” (Page 16.)

    For reasons explained here, I don’t think that reasoning holds together—in short, the Act does not penalize the act of associating, it penalizes association’s act of engaging in collective bargaining. The judge cites no authority for his implicit proposition that people have a right to associate “for the purpose being the exclusive agent in collective bargaining” (page 15). I don’t believe there is any authority for that proposition, because that would mean that there is a constitutional right to collective bargaining, which Judge Colás says there is not. (page 14).

    Perhaps the opinion would be stronger if it relied more clearly on the disparate treatment issue you raise.

  8. Tom Kamenick

    In this case, the plaintiffs are complaining about the disparate treatment of (1) employees who have chosen to bargain through an exclusive bargaining representative (regardless of whether or not they are members of that union); and (2) employees who have chosen to bargain individually. In other words, those who have chosen to collectively bargain and those who have not. This case does not involve the disparate treatment of public safety and general employees – that’s an issue in the federal cases.

    Which raises the question – how on earth is government supposed to treat these two groups the same? It’s completely impossible to bargain the same way with employees who choose to bargain collectively as those who bargain individually. Once you create collective bargaining, you’ve already created a system of disparate treatment. Ostensibly, that’s the whole point of forming a union – to take advantage of the different – and better – treatment historically afforded to groups of people bargaining in concert. It would not be rational to form a union were it otherwise.

    The corollary of that disparate treatment is that, under the status quo ante, employees who did not choose to bargain collectively were treated worse than those who did. Reversing those roles does not raise any constitutional concern. Not that the roles here necessarily have been reversed – quite a number of units of government workers have decided that they’re still better off bargaining collectively, even under Act 10. Act 10 may have only reduced the advantage of bargaining collectively, not eliminated it. Which makes this holding even more incomprehensible.

    The only constitutional rights at issue here are the right to join a union (free association) and the right to speak collectively through the union (free speech)*. Act 10 does not require any employee choosing to take advantage of the privilege of collective bargaining to give up either of those rights, contrary to Judge Colas’s conclusions.

    The first right is not affected by Act 10. Act 10 creates no barriers to joining a union. A public employee can be represented by a union without being a member, and vice versa. Government can completely abolish the privilege of exclusive representation and collective bargaining without affecting the right to associate in a union, as Judge Colas conceded.

    The second right is also unaffected by Act 10. The right to speak does not carry with it the right to make government listen to, dialogue with, or bargain in good faith with the union, as the U.S. Supreme Court has repeatedly held and Judge Colas conceded. Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984); Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463 (1979).

    The Supreme Court has also held that your rights to associate in a union and speak through it are not impaired by the number and extent of collective bargaining privileges held by unions. Smith, 461 U.S. at 465-66 (public employer has no obligation to listen to, to respond to, or to recognize a union even if such failure undermines the effectiveness of the union). Making forming a union “less attractive” is not a constitutional impairment. If it were, government would not be able to abolish collective bargaining – it would be constitutionally mandated. Nor would systems like the QEO, right to work, or even the system for most federal employees, who have no right to bargain over wages and benefits, be constitutional – they place substantive limitations on the privilege of collective bargaining.

    Two quick points on other parts of the decision. Judge Colas’s finding that the ban on payroll deductions is unconstitutional is contrary to Ysursa v. Pocatello Education Association, 555 U.S. 353, 359 (2009) (“[T]he State is not constitutionally obligated to provide payroll deductions at all). Furthermore, his decision finding the complete elimination of forced union fees (so-called “fair share” fees from nonmembers) unconstitutional is flatly contradicted by Davenport v. Washington Education Association, 551 U.S. 177 (2007), which held that it would be constitutionally permissible for a state to completely eliminate forced union fees.

    Final thought – judges keep telling us that government can abolish collective bargaining for public employees. Maybe the best way to move past all of this hoopla is to do just that.

    *Ironically, many opponents of Act 10 support stripping corporations – which includes unions – of the constitutional right to speak.

    (Full disclosure – I am co-counsel for amici in this case and the other Act 10 challenges.)

  9. Keith Schmitz

    It’s either all the public employee unions or no one. As of now many police unions, most particularly in Milwaukee, back Walker. It would be interesting to see if that holds up if they have to take the same hits as the other unions.

  10. Ed Fallone


    I agree with your focus on the non-uniformity question as an important aspect of Judge Colas’ decision.

    The point of my post was that the differential treatment of public employee representatives can raise consitutional concerns, and that Judge Colas was consistent with judges in similar cases in adopting this anaytical framework.

    For whatever reason, perhaps for purposes of litigation strategy, the State of Wisconsin prefers to argue that the lack of a consitutional right to bargain collectively is determinative of any constitutional challenge.

    When Judge Colas applies the differential treatment framework in his opinion, he makes three findings that I find interesting:

    1. He defines the groups facing differential treatment under Act 10 as public employees represented by unions and public employees who are unrepresented.

    2. He applies strict scrutiny to the Equal Protection claim.

    3. He finds that there is no governmental justification for the differential treatment.

    Taking these items in reverse order, it appears that Judge Colas had no choice but to find for the plaintiffs on the third point. The State of Wisconsin did not attempt to provide any justification for the distinctions contained in the law. On summary judgment, the failure to provide an argument on this point is fatal

    As to the second point,two of the federal cases I cite to in the post apply rational review to the Equal Protection claim, rather than strict scrutiny. However, in the Wisconsin case it appears that the parties conceded that rational review was the correct level of scrutiny for this claim and that the question was not contested. In any event, given Judge Colas’ holding on the First Amendment claim, the decision to apply strict scrutiny to the Equal Protection claim does not appear to be outcome determinative.

    That leaves the identification of the two groups being treated differently under Act 10 as perhaps the key finding in the opinion, as you point out.

    While Judge Colas recognizes that certain public safety unions are specifically exempted from the requirements of the law, he does not base his opinion on the special treatment accorded to them. Instead, he defines the two categories of employees subjected to differential treatment as being those public employees represented by a union and those who are not.

    This is a different situation from a state law that treats one union differently from another union. The question is whether this difference renders the entire analytical framework inapplicable, and therefore allows the state to treat unionized workers differently than non-unionized workers for any reason.

    I suspect that this will be the key question on appeal. However, the answer to this question is not self-evident to me. I note that Judge Snow in the United Food & Commercial Workers case (cited above) takes pains to note that the burdens of the Arizona law at issue fell “principally, if not soley, on unions collecting dues.” It may be that a group comprised of all unionized employees makes sense under the First Amendment analysis even if such a group might be inadequate on Equal Protection grounds.

    It is important to recognize that Judge Colas was apparently hearing only one side of the argument here. I don’t recall that the briefs of either the State or the amici dealt with this issue. Maybe they did, but my recollection is that the State simply denied that there was any constitutional issue involved at all, thereby leaving the field to the plaintiff’s counsel. I look forward to following the arguments on appeal.

  11. Bart Torvik

    Thanks for the response, Professor. Should be an interesting appeal—at least until it gets to the Supreme Court, where I am pretty sure I know what is going to happen.

  12. Nick Zales

    I find the legal analysis here very interesting. As a lawyer in private practice, I wish the private sector received 1/10,000th the amount of publicity and press public sector employees receive. If a person in the public sector loses their job, it’s front page news. If 100 people in the private sector lose their jobs, it’s not news at all.

    It is as if public sector employees are some kind of elevated class with “rights” above and beyond those afforded to the private sector. The mass-media fixation on public sector employees is not good for society. It’s time for everyone to be treated equally and be forced to accept the same responsibilities.

  13. Edward A. Fallone


    I do not understand your objection. The Fourteenth Amendment to the Constitution applies the Bill of Rights (including the First Amendment) to state actors and not to private actors. Only state employers can commit actionable constitutional violations. Private employers can only commit violations of statutory rights created by the federal Congress or the state legislature. You can blame the Fourteenth Amendment for this, but not Judge Colas.

  14. Nick Zales

    I don’t blame Judge Colas for anything. I blame a society fixated on public employees rights while ignoring the private sector. This has divided our state and caused great social unrest. It has increased the divide between the haves and the have-nots. It has caused people to be elected who made many major changes in the law far beyond Act 10 and those changes have been given the short-shrift. Continuous social unrest and civil society cannot co-exist. Our state is very divided and it is having a most deleterious effect on our legal system.

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