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Second Challenge to Wisconsin's Act 10 Fails, Law Is Constitutional

By Gabriella Khorasanee, JD on April 23, 2014 | Last updated on March 21, 2019

The protests, and dramatic exit of Wisconsin State Senate Democrats, surrounding the legislation of Wisconsin's Act 10 in 2011 are still fresh in our memory, yet they occurred three years ago. The controversial act has already been before the Seventh Circuit on constitutional grounds, and the challenges failed.

This week, in a second case, the Seventh Circuit again found that Wisconsin's Act 10 is constitutional.

Wisconsin's Act 10

Wisconsin's controversial Act 10 splits public employees into two categories: public safety employees (cops, firefighters, etc.) and general employees (everyone else). With regard to general employees, the law effectively requires public employers to negotiate with unions regard to base-wage increases -- and nothing else. In fact section 1(m) of the Act prohibits public employers from collective bargaining with its employees.

In the first challenge to Act 10, the Seventh Circuit found that the law was constitutional because it was viewpoint-neutral on the First Amendment claim, and that no fundamental right or suspect classification was implicated. Because this case presented different arguments than the ones presented in the first case, the court entertained the appeal.

Petition Clause Challenge

The plaintiffs' first claim is that Act 10 violates the unions' rights to petition the government under the First Amendment. Because the Act did not proscribe the unions' conduct, but instead, the conduct of government employers, the court found the unions' arguments lacking. The court noted, "some local employers and unions have collaborated informally in order to make changes in the workplace."

Right of Association Challenge

Next, the unions argued that Act 10 violated their associational rights, but the court did not agree. The unanimous panel stated that "nothing in Act 10 prohibits unions from forming, meeting, or organizing." The court added, "the First Amendment does not require the state to maintain policies that allow certain associations to thrive."

Equal Protection Challenge

Finally, the unions argued that Act 10 impermissibly differentiated between represented and individual employees, necessitating strict scrutiny review. The court again did not agree and held that rational basis review was the correct standard -- which the unions conceded would require a finding of constitutionality.

The attorney for plaintiffs in the present case, Bruce Ehkle, stated that he will analyze and discuss the decision with his clients to decide whether or not they will petition for writ of certiorari, reports the Journal Sentinel. There are several other lawsuits challenging Act 10 -- one is set to be reviewed by the Wisconsin Supreme Court, and another is on hold pending that cases disposition.

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