Is it January 2011 in Wisconsin yet? Matthews says Yes. WASB says No.


kangaroo court
1: a mock court in which the principles of law and justice are disregarded or perverted
2: a court characterized by irresponsible, unauthorized, or irregular status or procedures
3: judgment or punishment given outside of legal procedure

Madison Teachers Inc. Executive Director John Matthews announced on WTDY today that the Judge Colas’ ruling on Act 10 and Act 32 takes Wisconsin right back to January of 2011 – before Walker “dropped the bomb” on public unions in Wisconsin.

However, WASB [Wisconsin Association of School Boards] announced today that “ boards and unions have not been returned to the bargaining laws that existed prior to February 2011. The circuit court decision struck down only a limited portion of the changes made by Acts 10 and 32. Further, the circuit court’s legal conclusions are subject to a potentially lengthy appeals process.”

No offense intended toward John Matthews, but I do lean towards WASB’s assessment. (Which you can find here)

In case you missed this factoid, Matthews’ union MTI is one of the plaintiffs in the case decided by Judge Juan Colas.

Matthews today vowed to urge MTI’s board of directors and bargaining committee to ask the Madison school district to bargain a new contract and “go side by side on the handbook.”

Meanwhile Attorney General Van Hollen says he will ask a judge for a stay and he said he doesn’t know yet whether he will appeal the decision to Wisconsin’s Kangaroo Supreme Court or what.

I completely understand that the administration must defend its authoritarian position, act on its absolute revulsion with public sector unions, and prop up lies. Once you’ve declared eroneously that public sector union benefits are “like a virus” that eat budgets and must be “dealt with” before they go out of control you can’t back down no matter how numbskulled you sound – even when you’re talking about the state that has the top state employee pension fund in the nation, for example.

Happy Constitution Day Bonus Bits
It really is Constitutional Day today, September 17th. Because Wisconsin’s chief enforcer of the Tea Party version of the Constitution (Van Hollen) immediately vowed to appeal Judge Juan Colas’ decision, I refrained from celebrating the holiday early and giving myself the great pleasure of popping out a post entitled, “Judge Colas Bludgeons Walker’s Crap Legislation”.

I focused on the decision itself – that Colas’ decision declared that Walker had removed constitutionally guaranteed rights of public sector union workers: “Verdict: Walker took constitutional rights to speech, association, equality, home rule”

Nilesh Patel noticed this too and had a bit of a thrill:
“The decision appears to be the first by a Wisconsin court to recognize collective bargaining as a constitutionally protected fundamental right.” –source

Well yes, it does add up to that.

He’s an attorney and I am but a lowly anonymous wedge of cheese. But I don’t get this bit in his blog:
“The infringement on constitutional rights appears to be a question of first impression, because the decision does not cite any Wisconsin cases that discuss the issue.”

Actually it does and it’s a very interesting 1955 Milwaukee case, Lawson vs. Housing Authority City of Milwaukee. People who were being forced to sign McCarthy era loyalty oaths in order to get public housing sued, contending that it infringed on freedom of assembly and speech. If you didn’t catch that, I wrote about it here

Here’s the salient bit:
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.


  3 comments for “Is it January 2011 in Wisconsin yet? Matthews says Yes. WASB says No.

  1. September 18, 2012 at 10:43 am

    Because of your post and comments, I am updating my post to clarify the introduction:

    2011 Wisconsin Act 10 – the now famous and controversial law that essentially gutted collective bargaining rights for public employees – has been ruled unconstitutional. The decision appears to be the first by a Wisconsin court to recognize collective bargaining as a constitutionally protected fundamental right. It is not so broad. However, the decision is still a tremendous step for organized labor, assuming the decision is not reversed on appeal.

  2. September 18, 2012 at 1:46 am

    Thanks for the mention and linking to my post. It gives me a chance to clarify my post. Two points:

    1) At first look, the decision and lots of posts gave the appearance collective bargaining is a fundamental right. But that is not the case and I could have been clearer by the end of my post. The fundamental rights are for free speech and association, which public employees can exercise in the form of unions. The decision says govt. cannot treat someone differently or provide lesser treatment because the advocacy comes through an employee union.

    However, bargaining itself is not considered a fundamental right, at least as I read the decision. The parties acknowledged that. Collective bargaining is the next step in the process after employees agree to advocate together. But the first amendment does not mandate that a govt. employer sit down and bargain. The collective bargaining process for public employees is provided by state statute. The Judge’s decision says that now that that process is in place, the state cannot burden/infringe on/punish people who have come together to participate in that process.

    2. The 1955 housing case the Judge cites doesn’t have anything to do with collective bargaining. The Judge applies the principle from that case to the current situation. But I do not read that case as binding precedent. Rather, it provides an analogy which the Judge seems to be persuaded by. If the appeals court or Supreme Court uphold the decision, then we will have a precedent that applies the burdening of free speech principle to the collective bargaining process for public employees.

    Don’t sell yourself short…even a block of cheese can spot inconsistencies or questions that need clarifying.

    I hope this helped, rather than cloud the discussion even further.

    • September 18, 2012 at 2:46 pm

      Thanks very much for the clarifications and I see where you are coming from. Seems to me the decision pretty much says if you deny me my collective bargaining rights, you are finding one way to deny me my rights to association and free speech. At the same time, all citizens of Wisconsin who are not in a public sector labor union are free to negotiate with the employer over whatever they wish singularly or with a set of other workers – that group has more freedom. To those in professions that have been what I’ll call “historically wage and benefit oppressed” [examples might be garbage haulers in Memphis, most K-12 teachers] that will sound sort of like “If you deny me the legal option of walking, you are removing one method with which I transport my body.” Removing collective bargaining rights from some professions removes their ability to thrive. I have the feeling if Walker were reading this, he’d be responding, “Yes. That’s the point.”

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