On Friday September 14, 2012, Circuit Court Judge Juan Colas granted summary judgment in favor of Madison Teachers Inc. and others finding many basic provisions of Act 10 violate the US and Wisconsin Constitutions and are therefore null and void.
Judge Colas found that the restriction limiting the increases on general municipal employees’ base wages only to the CPI if bargained by a union burdened employees’ rights to free speech and freedom of association since the limitation applied only to municipal employees represented by a union.
The Judge held the prohibition against payroll dues deduction and the annual recertification election requirement by 51% of those eligible to vote burdens freedom of speech and association rights of those employees who support unions. The Court also found that the above described provisions violated employees’ equal protection rights when strict scrutiny is applied. Strict scrutiny is applied to provisions which burden fundamental rights such as freedom of speech and association.
Judge Colas referred in a footnote to the decision of US District Court Judge Conley who also invalidated the prohibition of payroll dues deduction and the annual recertification elections as unconstitutional. Judge Colas also found the Act 10 requirement that employees covered by the City of Milwaukee pay 5.5% toward their pension violated the City of Milwaukee’s right to home rule under the Wisconsin Constitution and the City’s contract with its employees since the City Charter provides the City pay the 5.5% and that the terms of the pension were vested.
The analysis of Judge Colas has some parallels to Judge Conley’s decision. Both find violations of free speech and equal protection clauses of the US Constitution and invalid the annual recertification elections and prohibition of payroll dues deduction for unions. Judge Colas’ decision, however, goes farther. It invalidates the all the restrictions on municipal employees right to bargain not just the recertification election and the prohibition on payroll dues deduction.
It finds that more provisions of Act 10 violate fundamental rights and therefore applies strict scrutiny to all those provisions when evaluating equal protection. The equal protection analysis is not based on the distinction between general and public safety employees, but rather the difference between represented and unrepresented employees.
It is likely Governor Walker will appeal the decision, just as he appealed Judge Sumi’s earlier decision enjoining the statute and Judge Conley’s decision. If that occurs there may also be a motion to stay the Court’s decision pending appeal. One concern is whether the Wisconsin Supreme Court will review the decision on the basis of the evidence and legal precedent, or for political reasons will ignore the legal precedent on which Judge Colas relied.