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Dane County judge strikes down parts of Wisconsin’s Act 10 collective bargaining law

Lawsuit contended the law violated state Constitution by treating different public unions differently

protestors pack the rotunda at the state Capitol in Madison
In this Feb. 17 file photo protestors pack the rotunda at the state Capitol in Madison, Wis. to protest Act 10. Andy Manis/AP Photo

A Dane County judge has struck down parts of Act 10, the 2011 law that sharply limited public union power in Wisconsin.

The Wednesday evening order was obtained by the Milwaukee Journal Sentinel. It comes just over a month after Circuit Court Judge Jacob Frost heard oral arguments in a lawsuit contending the law violated the state Constitution’s Equal Protection clause by permitting unions that represent police, firefighters and other public safety workers to keep their collective bargaining rights, while removing most bargaining rights from other public workers.

The plaintiffs in the case include teachers unions in Abbotsford and Beaver Dam as well as SEIU Wisconsin, AFSCME Local 1215, the International Brotherhood of Teamsters Local No. 695 and others. In May oral arguments, an attorney for plaintiffs argued there was no legally sound reason to give different status to different groups of public workers.

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Frost’s order came in response to a motion to dismiss the case from Wisconsin’s Republican-controlled Legislature. Senate Majority Leader Devin LeMahieu, R-Oostburg, issued a statement in response to the order that called Act 10 a “historic piece of legislation” and noted it previously “has been found legal and constitutional against multiple state and federal court actions.”

“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,” LeMahieu said in the statement.

A federal appeals court in 2014 ruled that the law was constitutional. And in 2014, the state Supreme Court also upheld the law.  

The unions filed the new lawsuit in November, months after the election of Justice Janet Protasiewicz gave the state Supreme Court a liberal majority. Protasiewicz has said she agrees with the liberal dissent in the earlier case, which found the law unconstitutional. But she also said she would consider recusing herself from hearing the case because she demonstrated against the law and signed a petition to recall Republican Gov. Scott Walker over it.

In response to the order, state Superintendent of Public Instruction Jill Underly, a Democrat, said in a statement that Act 10 was “used to justify massive cuts in school funding.”

“The right to organize one’s co-workers into a union, and then collectively bargain, is a fundamental American right,” Underly said in the statement. 

Wisconsin Education Association Council president Peggy Wirtz-Olsen said in a statement that the ruling “brings us one step closer to the shared goal of educators and other public employees.”

According to the Journal Sentinel, Frost on Wednesday found “no rational basis” for separating police and firefighters unions from other public workers. 

Frost reportedly ordered parties in the case to submit arguments about “what sections of Act 10 must be severed and struck under my ruling.”