One Step Closer: An Update on the Constitutional Challenge to Wisconsin Act 10
Earlier this summer, Axley published an update on a notable case in Wisconsin concerning a legal challenge to Act 10 pending in Dane County Circuit Court[1]. In that update, we reported on Judge Jacob Frost’s decision in Abbotsford Education Association v. Wis. Employment Relations Commission (WERC)[2], denying a motion for a preliminary injunction and finding that parts of Wisconsin’s Act 10 violate the equal protection guarantees of the state Constitution. Although the July 3, 2024, ruling did not conclude the case, it was a signal that Judge Frost would ultimately issue a decision finding Act 10 unconstitutional. The case was briefed by the parties, where the Plaintiffs, a group of seven union organizations and other interested parties, requested a Judgment on the Pleadings.
The issue presented in this case centers on the constitutionality of Act 10, which restricted collective bargaining rights for most public sector employees in Wisconsin. When first passed on March 9, 2011, Wisconsin Act 10 restricted collective bargaining rights for most public sector employees but allowed “public safety employees” to continue to collectively bargain with their municipal employers. Act 10 effectively eliminated aspects of collective bargaining for all other municipal employees.
On December 2, 2024, Judge Frost ruled on the Plaintiffs’ Motion for Judgment on the Pleadings and found Act 10 to be unconstitutional. The decision paves the way for an appeal to the Wisconsin Supreme Court, with the potential return to pre-Act 10 collective bargaining rights for all municipal employees in Wisconsin.
What Happens Next? Recent Developments in the Case
After Judge Frost’s ruling on December 2, 2024, the case was immediately appealed to the Court of Appeals. Since then, there have been two significant developments in the status of the case.
- Motion for Stay Pending Appeal Granted
- The Defendants asked Judge Frost to issue a stay of enforcement of the decision pending the outcome of the appeal. On January 23, 2025, Judge Frost granted a stay of his decision, pending the ultimate outcome of all appeals of the case. In his Order, Judge Frost acknowledged the “extremely high risk of utter chaos” if he did not stay the decision. Therefore, for the moment, municipalities are able to comply with Act 10 as it was prior to Judge Frost’s decision finding portions of it unconstitutional.
- Petition to Bypass Court of Appeals Filed
- On January 17, 2025, the Plaintiffs filed a Motion to Bypass with the Wisconsin Supreme Court. A bypass petition gives the Supreme Court the authority to take jurisdiction without the case going to the Court of Appeals, if a “real and significant question of federal or state constitutional law is presented.” See Wis. Stat. § 809.63(1r)(a). It is expected the Court will consider the petition to bypass in its February conference.
- It is notable that in its December conference, the Wisconsin Supreme Court granted a similar petition to bypass the Court of Appeals in SEIU v. WERC, Case No. 2024AP717. This case involves another Act 10 issue, involving the question of whether the University of Wisconsin Hospitals and Clinics Authority is required to bargain with labor unions. It stands to reason that, by accepting bypass on the SEIU v. WERC case, it is likely to accept bypass on the Abbotsford Education Association case as well.
What Should Municipal Employers Do to Prepare for Potential Revival of Collective Bargaining Rights?
If the Wisconsin Supreme Court grants the petition for bypass and accepts the case, it will likely be briefed and argued the spring of 2025. A decision would likely be issued by the end of the existing Court’s term in June 2025. Municipal employers should prepare for the potential of a return to pre-Act 10 collective bargaining rights for all municipal employees. In the event that the Wisconsin Supreme Court finds Act 10 unconstitutional, there will be a significant number of legal, budgetary, and operational issues for municipalities to consider and manage. Municipal entities would be well served in establishing a relationship with experienced labor law counsel to prepare for this potentially significant change in their legal relationship with employees.
Axley has decades of public sector labor experience representing municipal employers in labor matters, including union organizing drives, collective bargaining, interest arbitration, grievance arbitration, and informal contract administration. Axley’s representation of municipal employers in union matters has continued even after Act 10 became law because of our ongoing representation of public sector employers with public safety employees, including police departments, fire departments, and other employers with public safety employees who remained unionized. Axley will continue to monitor the status of the legal challenge to Act 10.
[1] Christopher M. Toner, “Potential Restoration of Collective Bargaining Rights for Municipal Employees in Wisconsin? Time for Municipal Employers to Prepare,” www.Axley.com, August 6, 2024
[2] Abbotsford Education Association v. Wis. Employment Relations Commission (WERC), Dane County Case No. 2023CV3152.