Wisconsin Governor Scott Walker’s 2011 legislation curbing the collective-bargaining rights of most public employees is constitutional, his attorney general told the state supreme court in a test of whether it infringes rights to free association and free speech.
Seven justices in Madison are hearing arguments today on the state’s bid to reverse a trial court judge’s decision last year that parts of the measure known as Act 10 unduly burden union members’ rights.
“We do not have a constitutional violation here,” Wisconsin Attorney General J.B. Van Hollen told the court, arguing that collective bargaining isn’t a fundamental right.
Asked by Justice Ann Walsh Bradley if the parties’ differing views of the right to free association was tantamount to two ships passing, Van Hollen responded, “I don’t believe we are two ships passing. We are two ships that collided. The state has a bigger ship and we will win.”
Lester Pines, a lawyer for the suing Madison teachers’ union, responded by referencing the 1912 sinking of the British oceanliner RMS Titanic that killed about 1,500 people.
“Titanic was a big ship,” he said. “The problem with Titanic was that it ran into an iceberg that was a lot smaller. What Act 10 ran into was the Wisconsin Constitution that protects the rights of citizens to associate.”
Advocated by Walker, a first-term Republican, the legislation requires annual recertification votes for union representation and made the payment of union dues voluntary. Some groups of public safety officers are exempt from its strictures.
Opposition to Act 10 drew protests outside the state’s Capitol and triggered a recall election last year in which Walker prevailed over Democratic challenger Tom Barrett.
A U.S. appeals court in Chicago upheld the measure in its entirety in a Jan. 18 ruling in a separate case. In a 2-1 vote, that panel reversed a lower-court decision that the annual recertification provision was invalid, as was the prohibition of voluntary deduction of union dues from the paychecks of general employees only.
Opponents of the measure, counting the opposing federal appeals court vote, and the state and federal trial court rulings invalidating parts of the measure, told Wisconsin’s top court justices that three of the five judges who have looked at the law have found it constitutionally defective.
“Those outcomes show that this case presents close constitutional questions that need careful consideration,” attorneys for the challengers said in their appellate brief.
“Plaintiffs do not contend that municipal employees have a constitutional right to force their employers to negotiate collectively with them,” the plaintiffs’ lawyers said. “Rather, they claim a constitutional right to self-organization and to associate with a union, including for collective-bargaining purposes.”
Responding to a question from Chief Justice Shirley Abrahamson today, Van Hollen told the judges that nothing in Act 10 prevents an individual employee from seeking a raise directly from an employer.
“The employer has the prerogative to grant the request, to listen to the employee or to say no,” the attorney general said, adding the law allows employers to reward those workers more deserving.
Trial court Judge Juan Colas in Madison ruled last year that parts of the legislation unduly burdened affected workers’ constitutional rights to free speech and free association.
A three-judge panel of Wisconsin’s intermediate-level Court of Appeals in April asked the state’s highest court to decide the issue after the Walker administration appealed the Colas decision.
“It’s hard to imagine a dispute with greater statewide effect or greater need for a final resolution by the Supreme Court,” the appellate judges said in their 24-page request.
The high court in June said it would take the case.
Following Van Hollen, Deputy Attorney General Kevin St. John told the court Colas’ decision applied only to the suing unions from Madison and Milwaukee and said the judge hadn’t issued a order blocking application of Act 10, and its annual recertification requirement, to non-parties.
“The sooner the court acts, the more likely we will be able to conduct elections,” St. John said.
Madison Teachers’ lawyer Tamara Packard countered that an injunction preventing those votes was unnecessary.
“The unconstitutionality ruling should have prevented the law from going into effect,” she said. In saying trial court ruling applied only to the parties to the case, lawyers for the state are arguing the existence of two state constitutions.
“One applies to these plaintiffs and the other constitution to all others,” Packard said, adding the state has an obligation to abide by Colas’ ruling. “Even if the trial court is dead wrong, that’s the separation of powers concept.”
The case is Madison Teachers Inc. v. Walker, 2012-ap-02067, Wisconsin Supreme Court (Madison). The trial-court case is Madison Teachers Inc. v. Walker, 11-cv-03774, Dane County, Wisconsin, Circuit Court, Branch 10 (Madison).
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