By Joe Kelly | Courthouse News
CHICAGO (CN) — In a continuation of a nearly decade-long fight, changes to union recertification in a controversial Wisconsin law constricting collective bargaining powers were debated before a federal appeals court panel Friday.
The 2011 Wisconsin Budget Repair Bill, more commonly known as Wisconsin Act 10, was introduced by former Governor Scott Walker, a Republican, a little more than a month after his inauguration. The legislation drew immediate nationwide attention for its sweeping changes to existing employment relations law seen as a severe rebuke of public sector unions, which included a prohibition on unions collectively bargaining over anything but base wages, sidelining formal bargaining over things like overtime, health benefits and job training.
Introduction of the law sparked lawsuits and partisan acrimony, leading to the largest demonstrations in and around the Wisconsin capitol building in Madison since the Vietnam War involving tens of thousands of protestors, hundreds of whom occupied the capitol rotunda for nearly a month. After considerable high drama, including 14 Democratic state senators fleeing across state lines to Illinois to block a vote on the matter, Walker signed the bill in March 2011 and it went into effect that June.
The underlying lawsuit relevant to Friday’s arguments in the Seventh Circuit was brought in August of last year by a Wisconsin chapter of the International Union of Operating Engineers and two union workers from Marinette County in the state’s rural northeast. It asked a Milwaukee federal judge to reevaluate Act 10 in light of the U.S. Supreme Court’s decision in Janus v. AFSCME, which declared that forcing non-union members to pay union fees that could be used for political representation is unconstitutional compelled speech.
The union’s lawsuit specifically challenges an Act 10 provision concerning union recertification elections, which states that a non-vote in the election counts as a vote against recertification and adjusted the majority threshold for gaining recertification from 50% of the vote plus one to a 51% supermajority. The complaint also challenged Act 10’s prohibition against labor and management bargaining over anything but base wages and a blanket ban on the voluntary deduction of dues from employees’ payroll.
The union and the workers argued that “by equating not voting with voting no, Act 10 directly infringes on the rights of public employees not to engage in speech,” which the plaintiffs saw as similar to the money-as-speech findings in Janus.
U.S. District Judge J.P. Stadtmueller, a Ronald Reagan appointee based in Milwaukee, ruled in March that the union did not have standing to sue and dismissed most of its claims, finding that “Act 10 does not violate plaintiffs’ First Amendment rights because it does not prevent the union or its members from speaking” and that barring payroll dues deductions is not an unlawful abridgement of free speech.
The Chicago-based Seventh Circuit took up the case upon the union’s appeal in April.
Brian Hlavin from the Baum, Sigman, Auerbach & Neuman firm in Chicago argued on behalf of the union Friday that “Janus announced a broadening and more aggressive enforcement of First Amendment rights of public sector employees,” which includes the right to speak freely and the right to remain silent.
Hlavin said that if the government cannot compel someone’s public speech, it also cannot mandate the speech of public employees who choose not to participate in elections by construing their non-vote as a no-vote.
U.S. Circuit Judge Ilana Rovner pressed Hlavin for information about whether employees who abstain from voting are listed as non-votes or no-votes derived from non-votes, attempting to get at the heart of what injuries, if any, the union and the employees attached to the lawsuit could prove.
Hlavin could not confirm how the abstentions were tallied, but made the case that since the majority of eligible voters did not participate in the latest recertification election, the union lost its certification even though most of those who did vote supported it, making abstainers “part of the process whether they like it or not.”
Appearing on behalf of the intervening GOP-controlled Wisconsin Legislature was Misha Tseytlin, an attorney with the Chicago office of Troutman Sanders and former Wisconsin solicitor general under Governor Walker. Tseytlin has represented the legislature in multiple lawsuits against the administration of Democratic Governor Tony Evers in recent years, including those over the governor’s coronavirus mandates and lame-duck laws Republican lawmakers passed in 2018 to reel in a number of his executive powers weeks after he was elected.
Rovner admitted to Tseytlin that she was “truly perplexed about why you appealed” the district court’s decision to block the legislature’s intervention when he dismissed the union’s claims, seeing as how “you were not a party and the only ruling that affected you was the denial of intervention because of mootness.”
Citing lame-duck provisions which give the legislature the right to intervene in lawsuits involving the state of Wisconsin, Tseytlin said “we have under state law the authority to defend state law in the same way the attorney general does” and went on to essentially say the legislature does not trust Democratic Attorney General Josh Kaul to defend Act 10 in court.
The George H.W. Bush appointee bucked against this, asking, “Is it advisable for this court to allow intervention on behalf of a party that is already very ably represented?”
Tseytlin shot back that the only party opposing the legislature’s intervention was the attorney general, who he accused of trying to give the legislature “second-class status.” The former solicitor general went on to argue that the plaintiffs still have no standing to challenge Act 10, that the U.S. Supreme Court has found that supermajority and absolute majority votes have no fundamental constitutional difference and that Act 10 prohibits municipalities from taking certain actions while bargaining with unions but does not restrict the speech of unions at all.
Assistant Attorney General Clayton Kawski represented Wisconsin, arguing that the district court was correct to toss the plaintiffs’ claims, that Janus does not make Act 10 unconstitutional and that “Act 10, in fact, preserved the plaintiffs’ free speech” rather than limited it.
On the matter of construing non-votes as no-votes, Kawski agreed with Tseytlin when he said the U.S. Supreme Court “has said this sort of arrangement is constitutional.” The state’s attorney also mirrored Tseytlin’s assertion that Act 10 does not burden unions’ right to free speech in the way they insist it does, offering that under the law unions are free to speak but employers just can’t listen.
Hlavin continued to contest the non-vote rule upon rebuttal, putting forth that it was a way to move the goal posts away from actively voting union members by using non-votes to greatly expand the pool of eligible voters and dilute a majority that voted for recertifying the union.
U.S. Circuit Judges Michael Brennan and Joel Flaum, appointees of Donald Trump and Reagan, respectively, rounded out the Seventh Circuit’s three-judge panel on Friday. No timeline was given for the appeals court’s decision.