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Taking Act 10 to court
Opponents launch multiple legal challenges to bring down collective bargaining law


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How much of Act 10 is in effect? Under an injunction? On appeal? Confused by the multiple legal challenges to Gov. Scott Walker's controversial collective bargaining law? So are we.

The motion filed Sept. 24 in Dane County Circuit Court to hold a state agency in contempt if it proceeded with union elections was the latest -- but not the last -- chapter of the legal battle waged by opponents of Walker's signature legislation, which eliminated most collective bargaining rights for most public employees. To help you understand where Act 10 stands, here's a rundown of the legal history.

Former Dane County Executive Kathleen Falk and former Dane County Board Chairman Scott McDonell filed the first lawsuit on March 11, 2011, the same day Walker signed Act 10. The lawsuit alleged that Republican state senators failed to give adequate public notice or access to the special conference committee that gathered to quickly amend the bill and pass it through the chamber on March 9, 2011.

Republicans needed to strip the bill of financial provisions in order to pass it without a full quorum, which Democratic senators made impossible by fleeing to Illinois to block a vote.

Falk's suit, which sought to prevent the law from going into effect, alleged that the amended bill still contained financial provisions, and required 20 senators to pass.

Dane County Circuit Court Judge Maryann Sumi ruled in April 2011 that the two plaintiffs, as state employees, could not sue the state. She dismissed all further claims in a June 2011 ruling.

Publishing the law

While Sumi did not rule in Falk's favor, she had already issued a restraining order against publishing Act 10 on March 18, 2011, in response to a lawsuit filed March 16 by Dane County District Attorney Ismael Ozanne. Ozanne's complaint argued that the conference committee violated the state's open meetings law.

Wisconsin Attorney General J.B. Van Hollen appealed Sumi's decision on March 21, and the Fourth District Court of Appeals sent the appeal to the state Supreme Court on March 24.

Despite Sumi's ruling, the Legislative Reference Bureau, at the direction of Republican lawmakers, on March 25 proceeded to publish the law. On March 29, Sumi threatened state agencies with sanctions should they ignore her order and implement the law.

After nearly six hours of oral arguments and an alleged physical altercation between justices the night before the announcement, the Wisconsin Supreme Court overturned Sumi's decision on a 4-3 vote on June 14, ruling that the open meetings law did not apply to the Legislature.

The law was eventually published by Secretary of State Doug La Follette on June 28, and went into effect June 29, 2011. Ozanne asked the Supreme Court to revisit its decision on Dec. 30 without Justice Michael Gableman, who had allegedly received free legal services from Michael Best & Friedrich, a firm hired by the state to defend the collective bargaining law. The court deadlocked on July 6, 2012, and did not reopen the case.

A third short-lived circuit court suit was filed March 25, 2011, by Madison city workers and firefighters. They alleged that the bill approved by the state Senate committee contained financial provisions requiring the full body's vote. That case was dismissed June 16, 2011, at the request of the plaintiffs, who wanted to try their luck in federal court, according to union lawyer Bruce Ehlke.

Federal court

Ehlke filed this federal challenge July 6, 2011, on behalf of two Dane County unions, Laborers Local 236 and AFSCME Local 60. It claimed Walker's collective bargaining measure violated workers' First Amendment rights to free association and equal protection under the law.

U.S. District Judge William Conley dismissed this suit on Sept. 11, 2013, arguing that the provisions in Act 10 identified by the unions do not violate the First Amendment.

Ehlke says the group will appeal Conley's decision to the 7th U.S. Circuit Court of Appeals in Chicago by the Oct. 11 deadline.

The Wisconsin Education Association Council, state AFL-CIO and other unions filed the second federal lawsuit against Act 10 on July 15, 2011. It charged the governor with favoring some public employees by excluding firefighters and police officers from Act 10.

Conley ruled that the measure violated union members' right to equal protection under the law, but he kept its bargaining limits intact.

Both the state and the unions in the lawsuit appealed Conley's decision, which was reversed in federal appeals court in January 2013.

Colas' ruling

Now back to that contempt motion from last week. It stems from a lawsuit, first filed in Dane County Circuit Court in August 2011, by unions representing Madison teachers and Milwaukee municipal workers. The unions argue that Act 10 violates the First Amendment rights of unionized workers to free speech and free association relative to their nonunion counterparts.

Under the law, unionized employees cannot negotiate pay raises higher than a cap tied to the rate of inflation. Non-unionized employees have no such limitation.

In September 2012, Dane County Judge Juan Colas ruled that the law violated unionized workers' constitutional rights. He also ruled that the state was prohibited from setting the level of Milwaukee city pension contributions for city employees, in response to another complaint raised in the lawsuit.

After the attorney general's appeal and request to place the ruling on hold, the court of appeals deferred to the state Supreme Court.

The Supreme Court agreed in June 2013 to rule on the case. According to the court, briefs have been filed, but no date has been set for arguments.

There continues to be much legal wrangling over what Colas' initial ruling means to municipal workers and teachers statewide. At issue is whether the ruling, as unions claim, renders the annual recertification elections for unions required by Act 10 unconstitutional.

On Sept. 17 Colas declined to issue an injunction to stop the recertification elections being organized by the Wisconsin Employment Relations Commission. The state has said it will keep holding elections despite the request filed by six of the unions for the court to hold the state Employment Relations Committee in contempt.

The most recent lawsuit against Act 10 -- number seven -- was filed Nov. 13, 2012 in Dane County Circuit Court by the Wisconsin Law Enforcement Association, which argues that the law is unconstitutional for state employees.

By exempting some members of the law enforcement union, Act 10 was "especially destructive," the union said in a 2012 statement. Oral arguments are scheduled for Oct. 10, 2013.

Lots of stakeholders

The number of lawsuits filed over just one statute does not surprise UW law professor Cecilia Klingele. "The more controversial the law, the more stakeholders, the more likely you're going to have interest groups who want to challenge it," says Klingele.

Moreover, various parties differ in their assessment of how best to challenge the law and in what jurisdiction. "That is the kind of decision lawyers are making routinely," she adds. "In this case you just have a lot more people who are interested in challenging."

Opponents of the act, of course, tried a different tack to upend the law: recalling Gov. Walker and Republican legislators. But Walker won the recall election in 2012, and efforts to flip the state Senate back into Democratic hands also failed. Lawsuits remain the primary vehicle for challenging Act 10.

As for the costs of all the legal warfare, the Milwaukee Journal Sentinel reported in April that Wisconsin taxpayers have paid roughly $850,000 in fees to the Michael Best & Friedrich law firm.u

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