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County Judge Strikes Down Portions of Walker’s Collective-Bargaining Law


The list of people who support Wisconsin governor Scott Walker’s law limiting the ability of public-sector unions to collectively bargain is fairly long. It includes the governor himself, the legislature, the state supreme court, and the voters of the state, who on June 5 reelected Walker by a larger margin than he had garnered in 2010 against the same opponent.

Yet the law was gutted on Friday by Dane County circuit court judge Juan Colas, who took it upon himself to save the citizens of Wisconsin from a law that they overwhelmingly support. Colas, who is one of 17 Dane County judges in a state with 72 counties, issued his opinion at 4:50 on Friday afternoon, when government officials uniformly dump information in order to avoid scrutiny.

It’s not hard to see why Colas likely wanted his opinion buried. It is a legal document so acrid, if it were read aloud at a funeral, the corpse would emerge from the casket and try to strangle the person reading it.

In striking down large swaths of Walker’s law, Colas claims Act 10 (as the law is known) violates both the state and federal constitutions. In a liberal college town like Madison, Wis., if you hear someone talking about the U.S. Constitution, he is usually wearing a fishbowl on his head and yelling on a street corner. Yet even those ramblings appear lucid compared to Colas’s reasoning.

Colas’s first claim is that Walker’s law imposes a limitation on the free speech of union members, by limiting their ability to collectively bargain on issues other than wages, by prohibiting the government from collecting labor dues for those unions, and by prohibiting union members from receiving pay increases above base pay plus the cost of living. Colas claims that the union members’ rights to freedom of association are being violated since none of Act 10’s prohibitions apply to non-union employees. “When the government elects to permit collective bargaining it may not make the surrender or restriction of a constitutional right a condition of that privilege,” Colas writes in the opinion.#more#

Yet Colas never says what “constitutional right” is being abridged with the law’s application of these prohibitions on union activities. It appears he believes there is a “right” to belong to a union, which of course is nonsense, as there are businesses all over the country that prohibit employee unionization. Furthermore, there’s nothing in the law that blocks government employees from belonging to a union, or associating however they want within that union — it simply spells out the terms by which salaries and benefits are to be negotiated.

Colas thinks it is unfair that these terms apply to union members and not non-represented employees. But the collective-bargaining limitations apply to unions because they are the ones who collectively bargain. Was Walker supposed to apply bargaining restrictions to employees who don’t negotiate collectively? This would be like striking down a law against public inebriation because the legislature didn’t apply it to giraffes.

Perhaps Judge Colas is unaware that the federal government prohibits collective bargaining for the vast majority of its employees. Or that 24 states currently either completely or partially limit collective bargaining by government employees. Undoubtedly, these laws have been adjudicated all over the country and at the federal level and they still stand — yet apparently Colas alone sees an infringement of a constitutional right. Perhaps Colas should send Barack Obama a letter telling the president that by prohibiting collective bargaining, he is violating the supreme law of the land.

Colas then argues that Act 10 violates the equal-protection rights granted by the Wisconsin and U.S. constitutions. The judge complains that Walker’s new statutes “single out for special requirements and prohibitions, those employees who choose to belong to certain organizations (and those organizations), solely because of the purposes for which the organizations are formed and the employees choose to associate.” Colas argues that these statutes create “distinct classes” of government employees, and therefore the highest standard of judicial review — strict scrutiny — applies.

Of course, “strict scrutiny” is often reserved for ethnic or religious minorities who have suffered from a history of discrimination. But in this case, it is the union members themselves who are the ones proactively choosing the class to which they want to belong. 

One wonders how Colas would have ruled on a 1959 bill signed by Wisconsin governor Gaylord Nelson, which was the first in the nation to allow government employees to collectively bargain.  Indeed, that bill itself created two “distinct classes:” those government employees who belonged to unions and those who didn’t. And the “class” of unionized government employees certainly enjoyed benefits (pay, health care, benefit increases) at the expense of the non-represented employees. Otherwise, why be in a union? For the snacks?

Colas’ final contention is that Walker’s law violates a “home rule” section of state law that prevents specific changes to Milwaukee’s pension and retirement system. But this is the weakest of all Colas’s arguments, as Act 10 is applied uniformly statewide, and therefore clearly does not infringe specifically and exclusively on Milwaukee’s local benefit system.

The judge’s opinion does not specifically enjoin enforcement of these provisions, so it is unclear what the decision’s effect will be. What is clear is that it will eventually be overturned and Walker’s law will live on. All Colas has done here is cost the taxpayers more money, as the state will now have to forge on to the appellate courts to have it vacated, as previous anti–Act 10 cases have been. In a week where it was disclosed that the recall elections cost $13 million, it appears Dane County doesn’t have a judge cognizant of the equal-protection rights of the taxpayers who are forced to pay for this nonsense.

— Christian Schneider is a columnist for the Milwaukee Journal Sentinel.


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