Federal judge backs Scott Walker in Act 10 ruling, dismisses lawsuit

 By Patrick Marley of the Journal Sentinel 

Madison — A federal judge threw out a lawsuit Wednesday challenging Wisconsin's tight restrictions on collective bargaining for public employees.

The decision by U.S. District Judge William Conley is the latest loss for unions and victory for Gov. Scott Walker, who proposed and approved the measure soon after he took office in 2011.

The law stipulates that government employee unions can negotiate over wages but nothing else, and that any pay increases can be no higher than the rate of inflation. The law also dictates that unions cannot be recognized by the state unless 51% of all potential members — not just those voting — support the union in annual elections.

Two unions representing local employees throughout Dane County sued in July 2011 in federal court in Madison contending the law violates their rights to freedom of association and equal protection under the law.

But Conley ruled that the law does not infringe on employees' rights.

"This difference is likely of no comfort to plaintiffs, but the First Amendment does not require an affirmative response from governmental entities; it simply requires the absence of a negative restriction," Conley wrote. "Under Act 10, general employees remain free to associate and represent employees and their unions remain free to speak; municipal employers are simply not allowed to listen."

Bruce Ehlke, the attorney for the unions, said he saw an inconsistency in Conley's logic because he believed barring employers from listening to unions in fact is a "negative restriction." He said the unions are considering appealing.

In their lawsuit, the unions noted that under Act 10 they could ask for no more than inflationary raises, while individual employees could ask for increases of any size, and argued such differential treatment is unconstitutional. But Conley found such differential treatment was acceptable.

In a similar case last year, Conley struck down parts of Act 10, but the U.S. 7th Circuit Court of Appeals reversed his decision in January and upheld Act 10 in its entirety.

Act 10 remains partially on hold for some unions because of a ruling in a separate case by a Dane County judge. That will be heard by the state Supreme Court.

The legal proceedings are one of the ongoing legacies of Act 10, which in early 2011 prompted massive protests and the departure of Senate Democrats from the state in an unsuccessful attempt to block the measure.

The law was immediately blocked by a judge because of the way legislators passed it, only to be revived three months later by the state Supreme Court. Numerous other legal challenges followed, and those could continue for months or years.

Republicans praised Wednesday's decision while unions decried it.

"Act 10 is a constitutional law enacted by the people's representatives and upheld in every case where we've had a final decision. This victory reaffirms our position," Walker spokesman Tom Evenson said in a statement.

"Judge Conley decided this case in our favor, and the claims in this case are very similar to those the Supreme Court will hear next month. This is a significant victory for Wisconsin taxpayers."

Phil Neuenfeldt, president of the Wisconsin State AFL-CIO, issued a statement saying he was disappointed in the decision.

"In America, workers have the right to join a union and with one stroke of his pen Governor Walker decimated that right," the statement said. "Act 10 always has and always will infringe upon a worker's right to collective bargaining and democracy in the workplace."