Wisconsin Act 10 is unconstitutional: What the ruling means
"This decision, combined with recent rulings on Wisconsin’s gerrymandered maps, signals a turning point." Guest column from Jeff Mandell of Law Forward.
The Recombobulation Area is a thirteen-time Milwaukee Press Club award-winning weekly opinion column and online publication founded by longtime Milwaukee journalist Dan Shafer. The Recombobulation Area is now part of Civic Media.
On Dec. 2, Dane County Circuit Court Judge Jacob Frost declared core provisions of 2011 Wisconsin Act 10 unconstitutional, marking a major victory for unions and public sector employees.
Most of you will remember Act 10 — which former Gov. Scott Walker jammed through the legislature as his surprise first order of business — for the seismic shift it imposed on Wisconsin’s political and social landscapes. The then-new right-wing GOP governing majority not only stripped public sector workers of their collective bargaining rights, but shortly thereafter enacted one of the nation’s most extreme partisan gerrymanders. This one-two punch fundamentally altered Wisconsin’s democracy by silencing workers and entrenching power in the hands of a select few.
More than a decade later, the tables are finally beginning to turn, with both cornerstones of the right-wing takeover declared void for running roughshod over Wisconsin’s constitution.
How did we get here?
Act 10 was enacted in the wake of the 2010 election, when the GOP-controlled legislature and Gov. Walker leveraged their new power to radically reshape the political playing field. It brought the state to a standstill, with tens of thousands of Wisconsinites gathering at the Wisconsin Capitol to protest, and with the Senate Democratic caucus fleeing the state in a bid to forestall the bill’s passage. All of the hubbub was for good reason: the law effectively eliminated collective bargaining for most public employees, forcing them to accept reduced pay, benefits, and workplace protections. It also imposed stringent recertification requirements for unions, upending democracy and imposing unfair obstacles to maintain their status as a union. It had a variety of other restrictions, too, that sought to strangle organized labor in Wisconsin.
At the same time, Walker and the right-wing legislative leadership redrew Wisconsin’s legislative maps to lock in their partisan control, regardless of public opinion and even election results. This gerrymander ensured that the right-wing takeover could adopt Act 10 and other controversial policies without fear of electoral consequences. The result was more than a decade of diminished worker rights and democratic stagnation.
But didn’t courts already approve Act 10?
More than a decade ago, shortly after the Legislature enacted Act 10, there were several lawsuits challenging the law, all of which ultimately were rejected. They contested that the legislature flouted the Open Meetings law and that Act 10 violated the federal constitution in various ways.
But none of them articulated the state constitutional theory raised in our lawsuit. Judge Frost reviewed all of the prior litigation and determined that it does not block the current case from moving forward.
Why is Act 10 unconstitutional?
Judge Frost’s ruling centered on the core provisions of Act 10, which he found violated the Wisconsin Constitution’s guarantee of equal protection.
The premise of the law is a division of public employees into two groups: “public safety” employees, who largely retained the bargaining rights and other labor law that all public employees enjoyed before Act 10, and “general” employees, who faced substantial rollbacks in their legal rights.
As Judge Frost noted, this division created an unequal system that disproportionately harmed teachers, municipal workers, and other essential employees. The problem, however, was not the policy of treating public safety workers differently from other workers. Instead, the fatal flaw was how Act 10 drew the dividing line. Act 10 defined the category of public safety workers differently than Wisconsin law otherwise did, with the result that some police and similar workers were classified as members of general employee unions and some workers who are not recognized elsewhere in Wisconsin law as public safety workers were classified as members of public safety unions that had significantly greater rights and protections.
Judge Frost held Act 10’s division unconstitutional because there is no rational basis for the way that Act 10 drew the dividing line.
For those seeking a practical basis, every public-sector union that endorsed Walker’s 2010 gubernatorial campaign is protected as a public safety union, and every union — including the ones representing the Capitol Police and the UW Police — that endorsed Walker’s opponent were excluded from the public safety category.
By striking down this arbitrary division, Judge Frost restored fundamental collective-bargaining rights to public sector workers, so that all public sector workers in Wisconsin will again have the ability to negotiate for better wages, benefits, and working conditions.
He also struck down dozens of other provisions in Act 10, including the requirements that general employee unions run an undemocratic gauntlet every year just to get recertified, as well as the prohibition precluding members of general employee unions from having their employers contribute to the union directly from each paycheck.
While other provisions of Act 10 remain intact, the decision severs the unconstitutional elements, reaffirming the principle that all workers deserve equal treatment under the law.
What are the implications of this decision?
If affirmed on appeal, this ruling has the potential to transform Wisconsin’s workforce. It eliminates artificial, anti-democratic obstacles to recognition for public-sector unions and restores the ability of such unions to bargain collectively, giving their members a seat at the table to advocate for fair pay, improved benefits, and safer workplaces. This isn’t just a win for workers; it’s a win for all Wisconsinites, as stronger public services and unions benefit everyone. In fact, research has shown that when states have strong unions it increases pay for everyone, not just union members.
Critics have raised concerns about potential costs to the state, but these fears are misleading. While employees may now bargain for better pensions or healthcare contributions, any changes will be determined through negotiation—as they should be. Workers will again have a seat at the table to negotiate for safe conditions, fair pay, and a better future, which ultimately benefits all Wisconsinites.
Public employees play critical roles in our communities. Teachers educate the next generation. Nurses provide life-saving care. Municipal workers keep our cities running. These are not just jobs; they are callings that require dedication, skill, and passion. Yet Act 10 made Wisconsin a less attractive place to work, driving talented individuals to other professions or out of our state.
But couldn’t public employees still unionize under Act 10?
One of the most anti-democratic aspects of Act 10 was its recertification requirements. Unions were required to win elections every single year, and such elections with a majority of all eligible voters, not just those who cast ballots. This meant that every non-vote — whether a deliberate abstention, a missed vote due to sickness or vacation, or even a non-vote because a former employee mistakenly remained on the rolls — was counted as a vote against union recognition.
In one example, the lead plaintiff in our case, the Abbotsford Education Association, received 50.8% of the vote — with every vote cast favoring union recognition —but was decertified because it had not hit the arbitrary 51% threshold. This system stacked the deck against workers, making it nearly impossible for unions to survive.
What happens next?
Once Judge Frost issues a final order (a necessary step for the judgment to take effect), his ruling is certain to be appealed. While the precise timeline is uncertain, what’s clear is that this decision has shifted the landscape. Public employees have a clear shot at once again having the ability to advocate for themselves and their communities.
This decision, combined with recent rulings on Wisconsin’s gerrymandered maps, signals a turning point. Wisconsin, once the nation’s most vibrant laboratory of democracy, has in recent years withered to a “democracy desert” due to the erosion of worker rights, the absence of fair electoral representation, the rollback of voting rights, and assaults on the functioning of our government. Now, on the precipice of having collective bargaining rights restored and with fairer state legislative maps in place, there’s hope for a more equitable and democratic future.
This fall, Wisconsin saw increased voter participation and candidate engagement under new, fairer maps. No one can predict exactly what the consequences of Judge Frost’s decision will be.
But one thing is certain: putting working families back at the bargaining table is a good thing. It strengthens our democracy, supports our workforce, and ensures that public servants — teachers, nurses, municipal workers, and more — can continue to serve their communities with dignity and pride.
The next generation depends on these professions, and so do all of us. With this ruling, Wisconsin has a chance to rebuild a fairer, stronger future for everyone.
Law Forward, in collaboration with co-counsel Bredhoff & Kaiser PLLC, represents the unions and workers standing up as plaintiffs in the Abbotsford Association case. For more information visit LawForward.org.
Jeff Mandell is the President and General Counsel of Law Forward, the nonprofit, nonpartisan law firm dedicated to defending and advancing democracy in Wisconsin.
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And now we have to keep this ruling in mind as we go into the spring WI Supreme Court election. We need a full-court press like the one that put Protasiewicz on the bench, to keep the Court progressive as this case climbs the appeals ladder.
Magnificent ruling & reading! Gotta spread this around to hard working folks everywhere!