In November 2023, seven unions filed suit in Dane County Circuit Court returning to do battle against a familiar foe: 2011 Wisconsin Act 10. The suit seeks to have Act 10 blocked, arguing that it violates the Wisconsin Constitution’s equal protection clause.

On July 3, 2024, the court rejected a motion to dismiss the case and “declare[d] those provisions of [Act 10] relating to collective bargaining modifications unconstitutional and void.”

The battle over Act 10 is, perhaps unsurprisingly, far from over. This article explores some of Act 10’s history to give context to the court’s recent decision and offers insight as to what may be to come.

History of Act 10

To many Wisconsinites, Act 10 requires little introduction. For others, a brief recounting of Act 10’s history and impact is appropriate.

In March 2011, former Wisconsin Gov. Scott Walker signed into law 2011 Wisconsin Act 10, which stripped away most collective bargaining rights from public sector labor unions. Simply put, Act 10 effectively ended collective bargaining for most of Wisconsin’s state employees. Act 10 exempted what it defined as “public safety employees” from its harshest provisions, however. For those employees, their collective bargaining rights were left largely unchanged.

Act 10 had a profound impact on Wisconsin’s labor unions. The percentage of Wisconsin workers belonging to a union went from 14.2% in 2010 to 7.4% in 2023, representing a nearly 50% decrease, according to the U.S. Bureau of Labor Statistics.

Before Act 10, Wisconsin’s percentage of unionized workers consistently exceeded national averages. Today, Wisconsin’s percentage of unionized workers falls well below the national average of roughly 10%.

The decline in Wisconsin’s public sector union membership since Act 10 has been even more precipitous. From 1984 to 2011, approximately 45% to 60% of Wisconsin’s public sector employees belonged to unions. By 2020, just 22.1% of Wisconsin’s public employees belonged to a union. In every year since 2011, Wisconsin’s public sector unions have lost roughly 11,500 members.¹​

MTI and WEAC

Multiple lawsuits challenged Act 10 in the wake of its enactment. Among these were Madison Teachers Inc. v. Walker, 358 Wis. 2d 1, 851 N.W.2d 337 (2014) (MTI) brought in state court, and Wisconsin Education Association Council v. Walker, 705 F.3d 640 (7th Cir. 2013) (WEAC), a federal court case.^2​

Both cases challenged Act 10 on the basis that it violated concepts of “equal protection” (the state constitution’s equal protection clause in MTI; the U.S. Constitution’s equal protection clause in WEAC), among other bases.

The plaintiffs in MTI alleged Act 10 violated the equal protection provisions of both the Wisconsin and the U.S. constitutions by treating represented general employees differently from nonrepresented general employees. In WEAC, the plaintiffs argued that Act 10 violated the equal protection clause of the U.S. Constitution because its division of public safety and general employees was irrational. Neither challenge was successful.

The Circuit Court’s Decision

This brings us to the most recent challenge to Act 10. On Nov. 30, 2023, Abbotsford Education Association, AFSCME Local 47, and five other unions representing teachers and other state employees brought suit in Abbotsford et al v. WI Employment Relations Commission et al.^3​ They contend that Act 10’s exemption of some police, firefighters, and other public safety workers from its definition of “public safety employees” violates the Wisconsin Constitution’s equal protection guarantee.

The suit seeks to have the law declared unconstitutional. The defendants in the case – Wisconsin Employment Relations Commission, the Department of Administration, and Division of Personnel Management, among them – requested ​that the court dismiss the plaintiffs’ suit on the basis of (among other things) res judicata, and laches, and on Act 10’s merits.

On July 3, 2024, the court denied the defendants’ motion:

Res judicata: different plaintiffs, different claims. As noted above, the defendants argued that the plaintiffs’ claims were precluded by the decisions in MTI and WEAC. The court disagreed, relying on basic principles of preclusion. For example, the court reasoned that none of the plaintiffs in the current case were plaintiffs in MTI or WEAC.

Furthermore, the court concluded that the current plaintiffs’ arguments are different from those advanced in MTI and WEAC. In MTI, the plaintiffs brought an equal protection challenge against Act 10’s distinction between represented general employees versus unrepresented general employees. That argument is “entirely different” from the current “claim that Act 10’s classification of public safety employees and general employees violates the equal protection.” In distinguishing the WEAC decision, the court reasoned that the federal court had “never applied Wisconsin principles regarding equal protection and did not address whether Act 10 violates Wisconsin’s Constitution.”

Laches: The suit is timely. Notwithstanding 13 years passing between Act 10’s enactment and the present suit, the court concluded the plaintiffs’ claims were timely. In so concluding, the court rejected the arguments of the intervenor-defendant, the Wisconsin Legislature, requesting dismissal based on the doctrine of laches. The court observed that Wisconsin courts have permitted significantly longer delays in prior constitutional challenges, and noted further that the “‘overriding responsibility’ of Wisconsin courts is ‘to the Wisconsin Constitution … no matter how late it may be that a violation of the Constitution is found to exist.’ [Clarke v. Wisconsin Elections Comm’n, 2023 WI 79,] ¶ 42.”

Act 10’s definition of ‘public safety employees’ is ‘irrational.’ A law does not violate equal protection guarantees simply because it treats similarly situated individuals differently. Rather, to violate equal protection, a law must treat similarly situated individuals differently without any rational basis for the different treatment. For example, the court had little difficulty permitting Act 10’s exclusion of public safety employees, finding that doing so “preserve[d] labor peace among employees deemed too vital to risk labor unrest with.” So, while Act 10 plainly is permitted to afford similar employees different treatment, the distinction used to explain the different treatment must be “rational.”

In this case, the court found Act 10’s rationale to be irrational. Act 10 does not define “public safety employees.” Instead, the legislature looked to the 22 groups of employees defined by Wis. Stat. section 40.02(48)(am) as “protective occupation participants,” and selected seven of the 22 to be included in Act 10’s definition of “public safety employees,” for whom collective bargaining rights were largely unaffected by Act 10. In the instant case, the court examined whether the legislature’s decision not to include the numerous other employee groups in its definition of “public safety employees,” was rational.

The court highlighted numerous examples of excluded employee groups in finding Act 10’s “public safety employee” definition to be irrational. The court could not, for example, come up with a rationale (and none was provided to the court) for the legislature’s inclusion of “motor vehicle inspectors” in its definition of “public safety employee,” while excluding Capitol and University of Wisconsin police and conservation wardens. Nor could the court conceive of a rationale for Act 10’s exclusion of state correctional officers working in the prison system from the definition of “public safety employee.” The court pondered, “[w]hat greater threat is there to public safety than the escape of the persons that those in the public safety group arrested and brought to justice?”

Ultimately, the court found, that

[b]ecause the Court cannot come up with any policy that explains why these 7 groups of employees are included but other similar employees are excluded, the classification lacks a rational basis.

For this reason and others, the court “declare[d] those provisions of the Act relating to collective bargaining modifications unconstitutional and void.”

What Happens Now?

Notwithstanding the court’s holding, it has yet to issue a final order in the case.

Before it does so, the court requested the parties submit briefing on the issue of remedy. Act 10 made changes to multiple other statutes on various issues. As part of any requested remedy, the parties are to identify whether portions of Act 10 can be “severed,”^4​ whether the entire law must be rendered invalid, or whether some other outcome is appropriate. After reviewing the parties’ submissions, the court will issue a final order.

Remedy, it should be noted, will prove a formidable undertaking should Act 10 ultimately be reversed on constitutional grounds. Doing so requires a court to put the plaintiffs in the same position they would have occupied had Act 10 not existed. Such a remedy would encompass the raises, pension contributions, health insurance premium offsets, and lost union dues payments, among other costs and benefits affected individuals and unions would have received but for Act 10’s reduction or elimination of such costs and benefits. Although applicable statutes of limitation could reduce some of these costs, any such remedy could ultimately prove massive.

However the court rules on remedy, its ruling is certain to be appealed, likely to the Wisconsin Supreme Court. However, it is too early to predict which members of the Court might participate in the appeal, let alone try to determine the outcome. For example, Justice Hagedorn was Gov. Walker’s chief legal counsel and had a role in drafting Act 10. Justice Protasiewicz participated in protests against Act 10 and signed a petition to recall Gov. Walker.

Whether either justice would recuse themselves from a future challenge to Act 10 remains to be seen. Justice A.W. Bradley, who wrote a dissenting opinion in MTI foreshadowing her willingness to declare Act 10 unconstitutional, retires at the end of her term on July 31, 2025, and her successor is not yet known.

This article was reprinted in the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ “State Drop in Unions Among Nation’s Largest,” Wisconsin Policy Forum, February 2022.

² Madison Teachers Inc. v. Walker, 358 Wis. 2d 1, 851 N.W.2d 337 (2014); and Wisconsin Education Association Council v. Walker, 705 F.3d 640 (7th Cir. 2013).

³ Abbotsford et al v. WI Employment Relations Commission et al., 2023CV3152 (Dane County Circuit Court)​.

⁴ Courts may “sever” the invalid portions of a law, so long as what remains is fully operative as a matter of law. See State v. Janssen​, 219 Wis. 2d 362, 379, 580 N.W.2d 260 (1998). While a discussion of severability is beyond the scope of this submission, whether those invalid portions of Act 10 can be severed (or whether the entire law should be rendered invalid) is certain to be vigorously contested by the parties.​