MADISON — A Dane County judge ruled Wednesday that provisions of Wisconsin’s Act 10 law are unconstitutional, denying a motion to dismiss a case challenging the Gov. Scott Walker-era law that severely limited union influence, sparked mass protests and changed Wisconsin’s political climate for years to come.
Several unions representing public workers filed the lawsuit in November 2023, citing a “serious situation” in the workplace involving problems such as low wages, staffing shortages and poor working conditions. Dane County Judge Jacob Frost considered a motion from the state Legislature to dismiss the case in May, promising to issue a ruling “in the near future.”
Frost, who was appointed to the Dane County circuit court by Democratic Gov. Tony Evers in 2020, appears to have signed a petition to recall the former Republican governor over the law. His signature appears on the petition next to an address where he lived in 2011 before Frost was a judge, according to property records.
The immediate consequences of Frost’s order are unclear.
The lawsuit alleges that the 2011 law violates the equal protection guarantees in the Wisconsin Constitution by dividing government employees into two classes: “general” and “public safety” employees. Public safety employees are exempt from the collective bargaining restrictions imposed on “general” government employees.
“Rational basis review provides a simple starting point. Can you explain the differential treatment of different groups in a statute in a way that makes sense and supports public policy? If not, the differential treatment is irrational and violates the right to equal protection of the laws. Because no one has provided this Court with an explanation that reasonably demonstrates why municipal police and fire departments and state troopers are considered public safety employees, but Capitol Police, UW Police and rangers, who have the same authority and do the same work, are not,” Frost wrote in his ruling.
“Thus, the Capitol Police, UW Police, and the Conservation Wardens are being treated unequally without any rational basis for that difference. Act 10 therefore violates their rights to equal protection under the law, and I declare those provisions of the Act relating to changes in collective bargaining unconstitutional and null and void.”
Plaintiffs include the Abbotsford Education Association; the American Federation of State, County and Municipal Employees (AFSCME) Locals 47 and 1215; the Beaver Dam Education Association; conservationist and President of AFSCME Local 1215 Ben Gruber; Beaver Dam teacher Matthew Ziebarth; SEIU Wisconsin; Racine Unified School District employee Wayne Rasmussen; the Teaching Assistants’ Association Local 3220; and the International Brotherhood of Teamsters Local 695.
Attorneys for the Justice Department and the Legislature did not immediately respond to requests for comment. The outcome of the case in Dane County District Court will certainly be appealed and will likely go to the state Supreme Court.
Jacob Karabell, an attorney representing the unions in the lawsuit, said in a statement that the plaintiffs’ attorneys agree that the collective bargaining provisions in Act 10 are unconstitutional and “look forward to the next steps in the case.”
Republicans strongly opposed the decision and the timing of its announcement.
“Act 10 has been found legal and constitutional against multiple state and federal court actions for nearly 15 years. This is yet another example of the courts making law from the bench,” state Senate Majority Leader Devin LeMahieu, R-Oostburg, said in a prepared statement. “Once again, the only way Democrats can get their way is through activist judges who hand down decisions on a holiday weekend when no one is looking. Sadly, if this decision stands, it will cost the hardworking families of Wisconsin millions of dollars.”
Act 10 ended the ability of public sector unions to negotiate on issues other than raises, and capped those raises at the rate of inflation. In addition, unions were required to hold annual elections to maintain their ability to negotiate raises. To win those elections, they had to win a majority of all eligible members, not just those who voted.
According to an analysis by the nonpartisan Legislative Fiscal Bureau, the net income of government employees earning $50,000 a year fell by about 8.5% because they had to pay more for benefits.
Four years after Act 10 passed, Republicans passed a right-to-work law that limited the power of unions in the private sector.
A 2022 analysis by the Wisconsin Policy Forum found that since 2000, no state has seen a larger decline in the percentage of workers who belong to a union than Wisconsin. It’s a significant development in the state that was the birthplace of AFSCME and the first to allow public-sector unions to negotiate contracts in 1959.
The law’s passage led to a wave of recall elections. Walker, its architect, became the first governor in American history to survive a recall petition, and former Lt. Gov. Rebecca Kleefisch became the first lieutenant governor to face one, and also the first to survive one.
Thirteen state senators were recalled because of Act 10 — 10 Republicans and three Democrats. Most of the incumbent senators won, but Democrats defeated three Republicans. That was enough to give them control of the Senate in the summer of 2012, but the victory came while the legislature was not in session and was short-lived. Republicans took back the majority that fall.
The attention from Act 10 made Walker a national Republican figure, giving him a chance to make a run for the presidency. He topped the polls among conservatives for weeks, but quickly abandoned his campaign after Donald Trump’s popularity among Republicans rose.
Former U.S. Rep. Peter Barca, who is currently challenging Republican U.S. Rep. Bryan Steil in the state’s 1st Congressional District, was the minority leader of the state Assembly from 2011 until 2017, when Act 10 passed. He led a more than 60-hour, continuous debate in an unsuccessful attempt to stop the bill.
“I’ve said all along that Act 10 is divisive, unconstitutional and wrong for workers,” Barca told the Milwaukee Journal Sentinel. “That’s why I led the fight on the shop floor against the law in the first place. … It’s an example of how we don’t normally do things and how we should never do things in Wisconsin. Open, accountable and accessible government brings people together, and strong unions make our state stronger.”
Previous legal challenges to the law failed, but this lawsuit came months after liberal Supreme Court Justice Janet Protasiewicz was sworn in, flipping the high court majority for the first time in years. State and national unions contributed more than $560,000 to Protasiewicz’s campaign and the Wisconsin Democratic Party — not counting individual member contributions.
Protasiewicz told the Milwaukee Journal Sentinel editorial board in March that she was considering withdrawing from litigation related to Act 10 because of her opposition to the law, including participating in protests in 2011 and signing a petition calling for Walker’s recall.
“I would have to think about it,” Protasiewicz said. “Given the fact that I ran, given the fact that I signed the recall petition, would I recuse myself? Maybe. Maybe. But I’m not sure.”
Walker responded to the case with a social media post addressing the ideological shift within the Supreme Court.
“Why should we elect a governor and legislators when activist judges can impose their own will?!?” Walker tweeted.
Attorneys arguing for the lawsuit’s dismissal stressed that Act 10 has withstood previous challenges. The Republican-led Legislature argued that the case should be dismissed because of the failure of previous challenges.
Republicans have praised the law’s savings, saying it gives elected officials and the public more control over their government. Democrats, however, argue that the law has hurt schools and decimated employee morale by stripping teachers, prison guards and others of their ability to have a say in their working conditions.
Frost concluded his order with the following: “Since my decision appears to resolve all issues, I direct the parties to file a brief or memorandum with the court to determine whether the court should enter judgment on the pleadings in light of this decision or take some other action to bring this case to a final judgment. As part of that discussion, plaintiffs should indicate which sections of Act 10 should be severed and struck down pursuant to my ruling and defendants should respond to this issue as well.”
Jessie Opoien can be reached at [email protected]. Laura Schulte can be reached at [email protected].