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labor Dane County Judge Strikes Down Elements of Wisconsin’s Act 10 Law That Curbed Public Unions

Previous legal challenges have failed, but this decision comes after liberal state Supreme Court Justice Janet Protasiewicz was sworn in, flipping the high court's majority for the first time in years.

Thousands gather inside Madison Wisconsin's Capitol rotunda in 2011 to protest the impending passage of Act 10, which curbed the rights of public employees in the state.,wikipedia

A Dane County judge has ruled provisions of Wisconsin's Act 10 law are unconstitutional and denied a motion to dismiss a case challenging the Gov. Scott Walker-era law that severely curbed unions' influence, sparked massive protests and reshaped Wisconsin's political climate for years to come.

Several unions representing public employees filed the lawsuit in November 2023, citing a "dire situation" in workplaces with issues including low pay, staffing shortages and poor working conditions. Dane County Circuit Judge Jacob Frost in May considered a motion from the state Legislature to dismiss the case, promising a ruling "in the near future."

Frost, who was appointed to the Dane County Circuit Court in 2020 by Democratic Gov. Tony Evers, 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 he lived at in 2011 before Frost was a judge, according to property records. 

The immediate implications of Frost's order, obtained late Wednesday, are unclear.

The lawsuit argues the 2011 law violates equal protection guarantees in the Wisconsin Constitution by dividing public employees into two classes: "general" and "public safety" employees. Public safety employees are exempt from the collective bargaining limitations imposed on "general" public employees.

"Rational basis review provides a simple premise. Can you explain a law’s differing treatment of different groups in a way that makes sense and supports a public policy? If not, the different treatment is irrational and violates the right to equal protection of the laws. Because nobody could provide this Court an explanation that reasonably showed why municipal police and fire and State Troopers are considered public safety employees, but Capitol Police, UW Police and conservation wardens, who have the same authority and do the same work, are not," Frost wrote in his ruling.

"Thus, Capitol Police, UW Police, and conservation wardens are treated unequally with no 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 collective bargaining modifications unconstitutional 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;  conservation warden 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 state Department of Justice and the Legislature did not immediately respond to requests for comment. The outcome of the case in the Dane County court is certain to be appealed and likely would head to the state Supreme Court.

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Jacob Karabell, an attorney representing the unions in the challenge, said in a statement that the plaintiffs' attorneys agree Act 10's collective bargaining provisions are unconstitutional and "look forward to next steps in the case."

Republicans decried the order and the timing of its release.

"Act 10 has been found legal and constitutional against multiple state and federal court actions for close to 15 years. This is yet another example of courts legislating from the bench," state Senate Majority Leader Devin LeMahieu, R-Oostburg, said in a prepared statement. "Once again, the only way the Democrats can get their way is through activist judges dropping decisions on a holiday weekend when no one is watching. Unfortunately, if this decision stands, it will cost Wisconsin's hard-working families millions of dollars."

Act 10 ended the ability of public-sector unions to negotiate over any issues other than raises, and those raises were capped at the rate of inflation. In addition, unions were required to hold annual elections to maintain their ability to negotiate for those raises. For those elections, they must win a majority of all eligible members, not just those who cast votes.

Public workers earning $50,000 a year saw their take-home pay shrink by about 8.5% because they had to pay more for their benefits, according to an analysis by the nonpartisan Legislative Fiscal Bureau at the time. 

Four years after Act 10 passed, Republicans approved a right-to-work law that limited the power of private-sector unions.

A 2022 analysis by the Wisconsin Policy Forum found that, since 2000, no state saw a larger decline in the proportion of its workforce that is unionized than Wisconsin — a significant development in the state that served as the birthplace of AFSCME and was the first to allow public-sector unions to negotiate contracts in 1959.

The law's passage launched a wave of recall elections. Walker, its architect, became the first governor in U.S. history to survive a recall challenge, and former Lt. Gov. Rebecca Kleefisch became the first lieutenant governor to face one, as well as the first to survive one.

Thirteen state senators faced recalls over Act 10 — 10 Republicans and three Democrats. Most incumbents won, but Democrats managed to unseat three Republicans. That was enough to give them control of the Senate in the summer of 2012, but the victory came when the Legislature was out of 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 launch a bid for the presidency. For weeks, he topped polls among conservatives, but he quickly abandoned his campaign after Donald Trump's popularity among Republicans took off.

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 state Assembly minority leader from 2011 though 2017 when Act 10 was passed. He led a more than 60-hour continuous floor debate in an unsuccessful effort to kill the bill.

"I've been saying all along that Act 10 was divisive, unconstitutional and wrong for labor," Barca told the Milwaukee Journal Sentinel. "That's why I led the fight on the floor in the first place, against the bill. … It's an example of how we normally don't, and should never do things in Wisconsin. Open, responsible and accessible government is what brings people together, and strong unions make our state stronger."

Previous legal challenges to the law have failed, but this lawsuit was filed months after liberal state Supreme Court Justice Janet Protasiewicz was sworn in, flipping the high court's majority for the first time in years. Unions at the state and national level contributed more than $560,000 to Protasiewicz’s campaign and the Democratic Party of Wisconsin — not accounting for individual contributions made by members.

Protasiewicz told the Milwaukee Journal Sentinel editorial board in March she would consider recusing herself from cases involving Act 10 based on her opposition to the law, including participating in protests in 2011 and signing a Walker recall petition.

"I'd have to think about it," Protasiewicz said. "Given the fact that I marched, given the fact that I signed the recall petition, would I recuse myself? Maybe. Maybe. But I don't know for sure."

Walker seized on the ideological shift in the Supreme Court in a social media post reacting to the case.

"Why elect a Governor and lawmakers if activist judges can impose their own will?!?" Walker tweeted.

Lawyers arguing for the lawsuit's dismissal stressed that Act 10 has withstood previous challenges. The Republican-led Legislature argued the case should be dismissed because of previous challenges' failures.

Republicans have touted the law’s savings and said it gave elected officials and the public more control of their government, while Democrats have argued it hurt schools and decimated employee morale by taking away the ability of teachers, correctional officers and others to help decide their working conditions.

Frost concluded his order with this: "As my decision appears to resolve all issues, I order the parties to file a letter or memorandum to the Court as to whether the Court should issue judgment on the pleadings in light of this Decision or take some other action to bring this action to a final judgment. As part of that discussion, Plaintiffs should address what sections of Act 10 must be severed and struck under my ruling and Defendants shall respond on this issue as well."

Jessie Opoien can be reached at jessie.opoien@jrn.comLaura Schulte can be reached at