Why 2011 Wisconsin Acts 10 and 32 Are Unconstitutional

Earlier today, Judge Juan B. Colas (Circuit Court of Dane County) struck down several controversial provisions of 2011 Wisconsin Acts 10 and 32, the statutes signed by Governor Scott Walker to restrict collective bargaining by public unions and reduce retirement benefits for public employees.

In celebration of this decision, we will publish a lightly edited excerpt of Judge Colas’s opinion:

[In these statutes,] the prohibitions against offering base wage increases above the cost of living or negotiating on other terms of employment do not apply to employees who are not represented by a union.

“The holding out of a privilege to citizens by an agency of government upon condition of non-membership in certain organizations is a more subtle way of encroaching upon constitutionally protected liberties than a direct criminal statute, but it may be equally violative of the constitution.” (Lawson v. Housing Authority of City of MilwaukeePersons, even if they have no right to a legislatively conferred benefit, cannot be required as a condition of receiving that benefit, to surrender constitutional rights, “unrelated to the purpose of the benefit” or be required “to comply with unconstitutional requirements.”

It is undisputed that there is no constitutional right to collective bargaining. Similarly, there is no constitutional right to a government-subsidized housing program. Yet the courts have held [in Lawson] that once the government elected to offer subsidized housing it could not condition eligibility for it upon surrender or restriction of a constitutional right unless that surrender or restriction was necessary to prevent a substantial evil that would threaten the operation of the program.

Although the statutes do not prohibit speech or associational activities, the statutes do impose burdens on employees’ exercise of those rights when they do so for the purpose of recognition of their association as an exclusive bargaining agent. The state has imposed significant and burdensome restrictions on employees who choose to associate in a labor organization. The statutes limit what local governments may offer employees who are represented by a union, solely because of that association. It has prohibited general municipal employees from paying union dues by payroll deduction, solely because the dues go to a labor organization

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. The prohibition on fair share agreements means that employees in a bargaining unit who join the union that bargains collectively for them are required to bear the full costs of collective bargaining for the entire bargaining unit, including employees in the unit who do not belong to the union but receive the benefits of bargaining. Statutes that burden the exercise of a constitutional right for a lawful purpose and reward the abandonment of that right infringe upon the right just as did the the prohibition in Lawson against members of certain associations residing in public housing.

[These statutes] single out and encumber the rights of those employees who choose union bargaining and representation solely because of that association and therefore infringe upon the rights of free speech and association guaranteed by both the Wisconsin and United States Constitutions.

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A challenger on equal protection grounds must show that “the statute treats members of a similarly situated class differently.” (Professional Police Association v. Lightbourn) The statutes prohibit payroll deduction for dues of general employee labor organizations, allow deductions for dues of public safety and transit labor organizations, and do not regulate payroll deduction of dues for any other kind of organization. These classes are equally situated and unequally treated.

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The Act also prohibits the City of Milwaukee from paying the employee share of contributions to the City of Milwaukee Employee Retirement System (“Milwaukee ERS”). That amount is 5.5% of the employee’s qualifying compensation.

The Wisconsin Constitution’s Home Rule Amendment grants municipalities the right to “determine their local affairs and government subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or village.”

Defendants read Van Gilder as holding that compensation of municipal employees is a matter of statewide concern, but that overstates the holding. Van Gilder found “the preservation of order, the enforcement of law, the protection of life and property and the suppression of crime are matters of statewide concern.” The plaintiffs here do not fall into those categories.

Consequently, the court finds that the allocation of responsibility for contributions to the Milwaukee ERS between the City and its employees is a “local affair” for purposes of the Home Rule Amendment. A statute that alters it is an unconstitutional intrusion into a matter reserved to the City of Milwaukee.

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Charter Ordinance § 36-13-3-g states that every participant in the ERS has a “vested and contractual right to the benefits in the amount and on the terms and conditions as provided in law on the date that combined fund is created.” Plaintiffs argue that among the benefits, terms and conditions provided by Ch. 36 of the Charter Ordinance is the obligation that the city pays the employee’s share of the retirement contributions.

Article I, sec. 10 of the United States Constitution and Article I, sec. 12, of the Wisconsin Constitution both bar impairment of contracts.

The elimination of a benefit equal to 5.5% of an employee’s compensation is a substantial impairment, and the defendants do not [offer] any evidentiary facts or expressions of legislative intent which would support a finding that the challenged change was necessary for the preservation of the Milwaukee ERS. Therefore, the plaintiffs have established beyond a reasonable doubt that [the statute in question] violates the contract clauses and is unconstitutional and null and void.