Verdict: Walker took constitutional rights to speech, association, equality, home rule


For the record: I am not an attorney.

A judgement rendered today by a Dane County circuit court judge determined that Walker’s Wisconsin Act 10 and Act 32 are, in parts, unconstitutional by either the U.S. constitution, the state constitution, or both.

What irony. Three days from now, on September 17th, America will mark “Constitution Day” and Wisconsin will do the same at Walker’s urging.

Basically, Judge Colas’ said it is unconstitutional to restrict public union employee collective bargaining to wages-only. He ruled that it is unconstitutional to treat different public employee groups unequally by allowing cops and firefighters to deduct union dues but not “general employees” while yet another group has zero restrictions on their deductions.

Also, Judge Colas’ ruled that WI Act 10 and 32 violated the Wisconsin constitution’s “home rule” amendment by taking powers away from the City of Milwaukee and Milwaukee’s city employees in their own management of ERS, a pension fund. Also, he ruled that the new restrictions placed on ERS violate both U.S. and state constitutional provisions that are designed to protect against “impairment of contracts”.

The ruling is a victory especially for municipal public workers in Wisconsin. A lot of those folks are teachers. Many of whom lost contracts and have been working under “handbooks” (some quite bad).

Milwaukee Journal Sentinel said today rather optimistically: “..The ruling means that, unless it is overturned on appeal, school districts and local officials will have to return to the bargaining table with their workers in a much more significant way.”

Maybe optimism sells more papers. I’m not partying tonight because, of course, Wisconsin’s Attorney General vows to appeal. This is still Fitzwalkerstan. We must stay strong but also stay tuned.

As for you state employees, while this lawsuit does not pertain to you directly (it’s about local, school employees, and special government employees), I’m not seeing anything here to prevent a challenge on your behalf.

Free Speech, Association
This is fascinating to me.

Judge Colas referenced a 1955 Milwaukee case, Lawson vs. Housing Authority City of Milwaukee to explain why WI Act 10 violates a Wisconsinite’s right to free speech and association.

The issue at the heart of the Lawson case was a federal law that restricted members of “subversive organizations” from entering federally subsidized housing (Yes. This was the McCarthy Era). During the 50’s, the U.S. Attorney General had developed a list of organizations that were considered a threat to the United States such as the Communist Party. Americans who wanted to enter into subsidized housing had to sign a loyalty oath following enactment of 1952 legislation nicknamed the Gwinn Amendment. The Milwaukee case declared the Gwinn Amendment unconstitutional. [Well there was a lot more to that story – but I’ll leave it there for now.]

Citizens were being forced to abandon their right to freely associate with these so-called “subversive organizations”. Some of them refused to sign the oathe, they lost rights, and they sued.

Since Mid-2011, Judge Colas’ explained, under Walker’s act 10 and 32, Wisconsin public union members have been unable to come together with other members – to associate – “for the purpose of being the exclusive agent in collective bargaining” unless they gave up rights. They were forced to give up the right to bargain over anything outside of wages.

Meanwhile other Wisconsinites have had the freedom to bargain singularly or collectively over whatever aspects of worklife they choose to — healthcare, pensions, work safety, scheduling and so on. The state has, under Walker’s Acts and statutes, rewarded the citizen of Wisconsin when he or she abandoned union membership.

The judge says if the defendant, Walker et al, could argue that a “significant evil” was prevented by infringing the rights of union member citizens to their speech and association, then the restriction could persist. Judge Colas said that the defendant made no case for that “significant evil”. Walker’s representation instead denied that they had infringed on rights at all.

Sidenote: The constant denial of what I can only call “the truth” has worked swimmingly for Walker in TV ads. The same technique doesn’t work so well for the D.O.J. case by case but with unlimited cash, cronyism, and a severe lack of shame, Walker et al. can just keep on playing judicial games. [I would be happy to be convinced I’m wrong, here. Add a comment.]

Equal Protection
The judge finds that the state has created groups for employees that are similarly situated and unequally treated – which is unconstitutional. We’re talking about three groups: general employee labor group vs the public safety employees like police and fire vs. “all other”. WI Act 10 prohibited union dues deductions for the general employees, allowed it for the cops and firemen, and does not at all regulate any deductions in the “all other” camp: unequal and therefore unconstitutional.

Home Rule
With regard to the ERS, a retirement system for Milwaukee employees, the judge found that the state’s law was stepping on powers afforded to Milwaukee by Article XI Section 3(1) of the Wisconsin Constitution.
That amendment came about following a 1924 statewide vote asking the question, “Shall amendment to Article IX, Section 3, of the constitution, providing for home rule for cities and villages, be adopted?” According to ballotpedia, 61% of Wisconsinites voted “yes”. The judge concluded that there was not sufficient argument to justify taking away Milwaukee’s “home rule” in the matter of administration of the city’s own retirement fund. You can read more on Home Rule in WI here.

I’ll leave it to the reader to visit page 23 of the judgement to read more about how Walker’s changes created “impairment of contract”.

Aren’t there other lawsuits out there on this? Oh yeah.

From Journal Times:
“The lawsuit was among several filed against the law.

A coalition of unions filed a federal lawsuit in Madison in June 2011, arguing that the law violated the U.S. Constitution’s equal protection clause because it exempted firefighters and police officers. A federal just upheld most of the law in March, but the rulings are under appeal.

Another lawsuit was filed in July 2011 by two unions representing about 2,700 public workers in Madison and Dane County. They also challenged the law on equal protection grounds. The case is pending.”


MTI et al. vs. Scott Walker et al.
Madison Teachers Inc., Peggy Coyne, Public Employees Local 61, and John Weigman are the plaintiffs in the case. MTI represents Madison Public School teachers and P.E.Local 61 represents Milwaukee city employees. Defendants in the case are Scott Walker and 3 commissioners of WERC (Wisconsin Employment Relations Commission).

The suit was filed in a the 10th circuit court of Dane County.

Plantiffs also made two failed arguments: that the session limiting clause of the Wisconsin State constitution was violated and that the U.S. constitutional provision against taking property interest was violated.

I won’t go into the arguments presented by Scott Walker et al. But you can. Review Judge Colas’ decision HERE.


  2 comments for “Verdict: Walker took constitutional rights to speech, association, equality, home rule

  1. Gomez
    September 15, 2012 at 5:21 pm

    Nice Job!

  2. standswithafist
    September 15, 2012 at 12:25 pm

    This is a very helpful discussion; thank you!

Comments are closed.