Wisconsin Education Association Council et al v. Walker, Scott et al

Filing 107

ORDER denying 56 Motion to Intervene by Nathan Berish, Ricardo Cruz, Kristi Lacroix; denying 63 Motion to Intervene by Wisconsin Law Enforcement Association, Tracy A. Fuller, Jill A. Buzick, Kathryn M. Rozmarynoski; granting 45 Motion for Leave to File Amicus Brief by Kristi Lacroix; granting 91 Motion for Leave to File Amicus Brief by Nathan Berish, Ricardo Cruz, Kristi Lacroix; denying 67 Motion for Leave to File Amicus Brief by James R. Holmes; denying 98 Motion for Leave to File Amicus Brief by Landmark Legal Foundation; denying 102 Motion for Leave to File Amicus Brief by United States Justice Foundation; granting in part and denying in part 80 Motion to Withdraw Affidavit of Cynthia A. Archer; denying 12 Motion for Oral Argument; denying 24 Supplemental Motion for Oral Argument; denying 105 Unopposed Motion for Oral Argument; granting 48 Motion for Leave to File Instanter Brief in Reply re: Plaintiffs' Motion for Temporary Restraining Order; denying as moot 11 Motion for Temporary Restraining Order; granting in part and denying in part 75 defendants' Motion for Judgment on the Pleadings; granting in part and denying in part 88 plaintiffs' Motion for Summary Judgment. Sections 227, 242, 289, 298, 9132 and 9155 of 2011 Wis. Act 10 are declared null and void. Defendants are enjoined from enforcing Wis. Act 10's recertification requirements for general employee unions and from prohibiting deductions for general employee unions, and directed to facilitate voluntary deductions on or before May 31, 2012. Signed by District Judge William M. Conley on 3/30/2012. (arw) Modified on 3/30/2012. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WISCONSIN EDUCATION ASSOCIATION COUNCIL;
WISCONSIN COUNCIL OF COUNTY AND MUNICIPAL
EMPLOYEES, AFSCME, DISTRICT COUNCIL 40, AFL-CIO;
WISCONSIN STATE EMPLOYEES UNION, AFSCME,
DISTRICT COUNCIL 24, AFL-CIO; AFT-WISCONSIN,
AFL-CIO; AFSCME, DISTRICT COUNCIL 48, AFL-CIO;
SEIU HEALTHCARE WISCONSIN, CTW, CLC; and
WISCONSIN STATE AFL-CIO,
Plaintiffs,

OPINION AND ORDER

v.

11-cv-428-wmc

SCOTT WALKER, Governor, State of Wisconsin;
MICHAEL HUEBSCH, Secretary, Department of
Administration; GREGORY L. GRACZ, Director, Office
of State Employment Relations; JAMES R. SCOTT, Chair,
Wisconsin Employment Relations Commission; JUDITH
NEUMANN, Commissioner, Wisconsin Employment Relations
Commission; and RODNEY G. PASCH, Commissioner,
Wisconsin Employment Relations Commission,
Defendants.

With the passage of 2011 Wisconsin Act 10, denominated the “Budget Repair
Bill,” the State of Wisconsin took a sweeping right turn from a half century of
developments in the rights of its public employees to unionize, collectively bargain and
collect union dues.1 Plaintiffs, representing seven of Wisconsin’s largest public unions,

1

In 1959, Wisconsin became the first state to recognize the right of public employees to
collectively bargain. See Municipal Employment Relations Act, Wis. Stat. § 111.70
(enacted in 1959); Joseph E. Slater, Lessons from the Public Sector: Suggestions and a Caution,
94 MARQ. L. REV. 917, 927 n.65 (2011) (discussing public union history).

do not challenge this exercise of political will by the Legislature or Governor, apparently
acknowledging that the wisdom of this change is for the court of public opinion -- a
forum where heated discourse and recall elections continue.2

Instead, on Equal

Protection and First Amendment grounds, plaintiffs challenge the law’s creation and
treatment of two new classifications of public employees: “general” and “public safety.”
Under Act 10, the State left the rights of public safety employees to unionize and
collectively bargain unchanged, while general employees lost most of these rights. Here,
plaintiffs challenge three, specific provisions of Act 10 impacting only general employees
and their unions: (1) the elimination of mandatory dues and fair share fees and the
stripping of all collective bargaining rights, except on “total base wages”; (2) the
apparently-unprecedented requirement for annual recertification by an absolute majority
of union members (as opposed to conditional or member-driven recertification by a
simple majority of those actually voting); and (3) a prohibition on the voluntary
withholding of union dues from a general employee’s paycheck.
Now before the court is plaintiffs’ motion for summary judgment and defendants’
motion for judgment on the pleadings.3 (Dkt. ##75, 88.) Relying principally on the

2

Seventh Circuit Judge Diane Sykes recently provided background for those interested in
some of the political machinations since the election of Governor Walker and a majority
of his party to both houses of the Wisconsin Legislature. See Wis. Right to Life State
Political Action Comm. v. Barland, 664 F.3d 139, 144-45 (7th Cir. 2011).
3

On behalf of their general employee union members, plaintiffs originally sought a
temporary restraining order or preliminary injunction enjoining the enforcement of these
three provisions. Failing to perceive a basis for the sweeping interim relief sought, the
court has been dilatory in ruling on those motions. This was by no means a conscious
decision by the court to frustrate the rights of plaintiffs to a ruling or opportunity for an
interlocutory appeal of that ruling, though it obviously had that effect, but rather a
2

modest protections afforded by the Equal Protection Clause, plaintiffs argue no rational
basis exists for the general and public safety classifications, other than the award of naked
political patronage -- the primary beneficiaries of the “public safety” classification being
unions who publicly and monetarily supported Governor Walker’s November 2010
election. Defendants, on the other hand, contend that the creation of a new class of
public safety unions and exempting those unions and their members from extensive
changes in the rights of Wisconsin’s other public employee unions and their members is
rationally related to the legitimate government interest of “prevent[ing] the disruption of
essential government services.” (Defs.’ TRO Opp’n (dkt. #40) 8.)
The sole issue before the court, therefore, is whether the State’s dismantling of
public union rights in piecemeal fashion implicates constitutional protections. Plaintiffs
assert two causes of action: (1) an Equal Protection claim as to all three challenged
provisions in Act 10; and (2) a First Amendment claim as to the prohibition on
automatic dues withholding for members of general employee unions.
The court finds that plaintiffs have not met their burden with respect to their
Equal Protection challenge to Act 10’s principal provisions limiting the collective
bargaining rights of general employees and their unions. The State, however, has not
articulated, and the court is now satisfied cannot articulate, a rational basis for picking
and choosing from among public unions, those (1) that must annually obtain an absolute
combination of the weighing of the uncertainties of ruling on a shifting and incomplete
record against the press of other business and, ultimately, the need for further
consideration of the First Amendment aspects of plaintiffs’ claims. Nor is it reflective of
the court’s past or future practice, except perhaps those in the unusual posture of this
case, and preferably not even then.
3

majority of its voluntary members to remain in existence or (2) that are entitled to
voluntary, assistance with fundraising by automatic deduction, at least not a rational
basis that does not offend the First Amendment. So long as the State of Wisconsin
continues to afford ordinary certification and dues deductions to mandatory public safety
unions with sweeping bargaining rights, there is no rational basis to deny those rights to
voluntary general unions with severely restricted bargaining rights.
Accordingly, the court will (1) grant defendants judgment on those claims
challenging restrictions on the collective bargaining rights of general employee unions on
Equal Protection grounds, (2) grant plaintiffs summary judgment on their claims
challenging annual, absolute majority union recertification and denial of voluntary union
dues deductions as to general employee unions on Equal Protection and First
Amendment grounds, and (3) enter the appropriate relief.

PRELIMINARY MATTERS
In addition to the pending dispositive motions, there are a number of other,
related motions presently before the court. First, there are separate motions to intervene.
Kristi Lacroix, Nathan Berish and Ricardo Cruz have moved to intervene as defendants
in this action pursuant to Federal Rule of Civil Procedure 24(a)(1). (Dkt. #56.) LaCroix
and Berish are public school teachers, and Cruz is employed by the Wisconsin
Department of Employee Trust Funds. All three object to being compelled to pay union
fees as a condition of employment and to being forced to be represented by two of the

4

plaintiff unions. These proposed intervening defendants seek to argue that mandatory
union membership and the payment of dues violate their First Amendment rights.
As for this intervention motion, the law is well-established that “employees can be
required to contribute fair share fees to compensate unions for their representational
activities.” Sorrell v. Am. Fed’n of State, Cnty., Mun. Employees, No. 02-2909, 2002 WL
31688916, 52 Fed. Appx. 285, at *1 (7th Cir. Nov. 22, 2002) (citing Lehnert v. Ferris
Faculty Ass’n, 500 U.S. 507, 519 (1991)). As importantly, plaintiffs’ challenge to Act 10
does not seek to overturn the fair share allotment of dues payments by dissenting
employees, like the proposed intervening defendants.

The proposed intervening

defendants’ unique First Amendment claim is, therefore, tangential to the subject matter
of this lawsuit.

See Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir. 1985) (“[T]he

applicant must have a direct and substantial interest in the subject matter of the
litigation.”). In all other respects, the current defendants can adequately represent their
interests. See Ligas ex rel. Foster v. Maram, 478 F.3d 771, 774 (7th Cir. 2007) (“[W]hen
the representative party is a governmental body charged by law with protecting the
interests of the proposed intervenors, the representative is presumed to adequately
represent their interests unless there is a showing of gross negligence or bad faith.”).
Accordingly, the court will deny this motion to intervene.
Also before the court is a motion to intervene as plaintiffs by Wisconsin Law
Enforcement Association (“WLEA”), Tracy A. Fuller, Jill A. Buzick and Kathryn M.
Rozmarynoski. (Dkt. #63.) WLEA is an organization consisting of three local unions
with general employees and public safety employees as members.
5

Fuller, Buzick and

Rozmarynoski are WLEA members.

WLEA contends that it is the only state-wide

bargaining unit that includes both categories of employees, and seeks to intervene
because of this “unique” position. While WLEA’s position may well be unique, it has
not explained -- nor does its proposed complaint suggest -- how its claims are different
than those of the plaintiffs, nor as importantly why plaintiffs will not adequately
represent WLEA’s interest. Accordingly, the court will also deny WLEA’s motion to
intervene.
Second, a number of parties seek leave to file amicus briefs. The policy of the
Seventh Circuit, which this court will follow here, is to “grant permission to file an
amicus brief only when (1) a party is not adequately represented (usually, is not
represented at all); or (2) when the would-be amicus has a direct interest in another case,
and the case in which he seeks permission to file an amicus curiae brief, may by operation
of stare decisis or res judicata materially affect that interest; or (3) when the amicus has a
unique perspective, or information, that can assist the court of appeals beyond what the
parties are able to do.” Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir.
2000). While the court has denied Lacroix’s, Berish’s and Cruz’s motions to intervene,
the court will grant Lacroix’s motion to file an amicus brief in opposition to plaintiffs’
motion for temporary restraining order (dkt. #45) and their collective motion to file an
amicus brief in support of defendants’ motion for judgment on the pleadings and in
opposition to plaintiffs’ motion for summary judgment (dkt. #91). Arguably, at least,
each has a unique perspective on the First Amendment implications of Act 10 which may
be of some assistance to the court.
6

James Holmes, a self-described “resident citizen taxpayer of the State of
Wisconsin,” also seeks leave to file an amicus brief in opposition to plaintiffs’ motion for
a temporary restraining order. (Dkt. #67.) Not only is that motion mooted by the
court’s dispositive ruling today, but the court finds the proposed amicus brief of no
assistance and, therefore, Holmes’ motion will be denied.
Two public interest groups -- the Landmark Legal Foundation and the United
States Justice Foundation -- have also moved for leave to file amicus briefs in support of
defendants’ position. (Dkt. ##98, 102.) Neither proposed brief materially advances
defendants’ arguments beyond what defendants themselves have presented. Moreover,
the Seventh Circuit specifically warns against attempts by amicus curiae “to inject
interest-group politics” into the federal courts. Nat’l Org. for Women, 223 F.3d at 617.
Accordingly, the court will also deny Landmark Legal Foundation’s and the United States
Justice Foundation’s respective motions for leave to file amicus briefs.
Third, in opposition to plaintiffs’ motion for a temporary restraining order,
defendants submitted an affidavit of then-Deputy Secretary of the Department of
Administration Cynthia Archer describing the analysis conducted to determine which
employees should be placed within the “public safety” category. (Affidavit of Cynthia
Archer (“Archer Aff.”) (dkt. #42).) Defendants resisted plaintiffs’ attempt to depose
Archer and, as a solution, now seek leave to withdraw Archer’s affidavit.4 (Dkt. #80.)

4

In the same motion, defendants also seek leave to amend their opposition to plaintiffs’
motion for a temporary restraining order and an order barring discovery concerning the
information contained in Archer’s affidavit. Defendants offer no justification for the
delay in seeking leave to amend their opposition, and therefore the court denies that
7

Defendants’ request is, at best, unorthodox. Having opened the door, the court would
under ordinary circumstances have ordered discovery of an affiant to proceed, whether or
not the proponent later withdraws the affidavit. Here, however, plaintiffs do not oppose
withdrawal of the affidavit, and therefore the court will grant defendants’ request to
withdraw Archer’s affidavit, though will consider it to the extent relied upon by
plaintiffs.5

UNDISPUTED FACTS6
A. The Parties
Plaintiffs are labor organizations, exclusive collective bargaining representatives of
certain

state

and

municipal

employees,

and

organizations

of

affiliated

labor

organizations, within the meaning of Wis. Stat. §§ 111.70(1)(h), 111.81(12), and
111.96(13) (repealed by 2011 Wis. Act 10).7 Defendants are all state officials who have
constitutional or statutory authority for implementing or administering Act 10.

request. As for the order barring discovery, plaintiffs do not appear to oppose this
request, but in any event, it is rendered moot by this decision.
5

There are a few additional motions. The court grants plaintiffs’ motion to file a reply
brief in response to defendants’ opposition to plaintiffs’ motion for a temporary
restraining order. (Dkt. #48.) The court also denies as moot plaintiffs’ motion for a
temporary restraining order (dkt. #11) and plaintiffs’ motions for oral argument (dkt.
##12, 24, 105).
6

The court finds the following facts to be material and undisputed consistent with the
parties’ proposed findings of fact.
7

The plaintiff unions here have standing to sue on behalf of their members. See S. Ill.
Carpenters Welfare Fund v. Carpenters Welfare Fund of Ill., 326 F.3d 919, 922 (7th Cir.
2003) (citing Warth v. Seldin, 422 U.S. 490, 511 (1975)); see also Wis. Right to Life State
Political Action Comm. v. Barland, 664 F.3d 139, 148 (7th Cir. 2011) (“In addition to its
8

B. Overview of 2011 Wisconsin Act 10
At Wisconsin Governor Scott Walker’s request, Act 10 was introduced in a special
session of the Legislature on February 14, 2011 as Special Session Senate Bill 11. The
Governor publicly identified the bill as a “Budget Repair Bill.” In press releases and
public addresses, the Governor asserted that Act 10 was needed to balance the state
budget and to give state and municipal governments the tools to manage their budgets
during economic crisis.
Act 10 passed on March 11, 2011.

A Wisconsin state circuit court initially

enjoined the Act from being published or implemented, finding that the Act was adopted
in violation of the Wisconsin Open Meetings Law, Wis. Stat. § 19.81. The injunction
was lifted by the Wisconsin Supreme Court on June 14, 2011,8 and the Act took effect
on June 28, 2011.
The Act amends statutes that govern public sector labor relations in Wisconsin,
including the Municipal Employment Relations Act (“MERA”), Wis. Stat. § 111.70 et
seq., the State Employment Labor Relations Act (“SELRA”), Wis. Stat. § 111.80 et seq.,
the Wisconsin Employment Peace Act (“WEPA”), Wis. Stat. § 111.01 et seq., and the
UW System Faculty and Academic Staff Labor Relations Act (“FASLRA”), Wis. Stat. §

own Article III injury, the Right to Life PAC has standing to sue to vindicate the
political-speech rights of its contributors.”)
8

See State el rel. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436.
This decision is currently the subject of a motion for relief from judgment. Mot. for
Recusal of Justice M. Gableman and Motion for Relief from J., State ex rel. Ozanne v.
Fitzgerald, No. 2011AP000613-LV (Wis. Dec. 30, 2011).
9

111.95 et seq.

Central to the unions’ claims, Act 10 creates two new categories of

employees: “public safety employees” and “general employees.”
Under Act 10, “public safety employees” are defined as:
SECTION 216. 111.70 (1) (mm)[part of MERA] of the
statutes is created to read:
111.70 (1) (mm) “Public safety employee” means any
municipal employee who is employed in a position that, on
the effective date of this paragraph …. [LRB inserts date], is
classified as a protective occupation participant under any of
the following:
1. Section 40.02 (48) (am) 9. [a police officer], 10. [a
fire fighter], 13. [a deputy sheriff], 15. [a county traffic
police officer], or 22. [a person employed as a village
police officer and fire fighter].
2. A provision that is comparable to a provision under
subd. 1. that is in a county or city retirement system.
...
SECTION 272. 111.81 (15r) [part of SELRA] of the statutes
is created to read:
111.81 (15r) “Public safety employee” means any individual
under s. 40.02 (48) (am) 7. [a member of the state traffic
patrol] or 8. [a state motor vehicle inspector].
2011 Wis. Act 10 §§ 216, 272, attached as Ex. B to Affidavit of Timothy E. Hawks
(“Hawks Aff.”) (dkt. #15-2).
The “public safety employee” classification does not correspond to any
classification of employees in any previous Wisconsin law. By way of illustration, the
Wisconsin Public Employee Trust Fund, Wis. Stat. § 40.02(48)(am), defines twenty-two
job categories as “protective occupation employees.”

Of these twenty-two categories,

only five -- police officers, deputy sheriffs, fire fighters, county traffic police officers and
10

village employees who perform both police protection and fire protection services -- fall
within the “public safety employee” category under MERA, and only two -- troopers and
motor vehicle inspectors in the State Patrol -- are “public safety employees” under
SELRA. In particular, “public safety employees” do not include police officers and fire
fighters who work for the State, namely the Capitol Police, the UW Campus Police, and
Fire / Crash Rescue Specialists.
Under the Act, “general employees” is simply a catch-all term for every other
Wisconsin public-sector employee covered by MERA and SELRA who is not a “public
safety employee.” See, e.g., 2011 Wis. Act 10 §§ 214, 268 (“‘General employee’ means an
employee who is not a public safety employee”).

C. Restrictions on Collective Bargaining Rights of General Employees9
The unions challenge three provisions of Act 10, each of which treat “public safety
employees” differently from “general employees.”

First, under Act 10, unions

representing “general employees” are no longer permitted to bargain collectively over a
broad array of topics related to wages, hours, and conditions of employment. Instead,
collective bargaining is limited to “only total base wages and excludes any other
9

Defendants criticize plaintiffs’ use of the term “rights” as in the phrase “collective
bargaining rights,” implying that plaintiffs’ use is intended to suggest an inalienable, or at
least constitutional, right to collectively bargain. (Defs.’ Br. in Supp. of Mot. for J. on
Pleadings (dkt. #76) 7.) At least in a legal context, however, the term “rights” need not
be so fundamental. Thus, courts often refer to rights derived from other sources. See,
e.g., Alabama v. North Carolina, 130 S. Ct. 2295, 2316 (2010) (describing “statutory and
contractual rights”). Since collective bargaining rights for state and local public
employees are a creature of state statute, a fact that neither plaintiffs nor defendants
dispute, defendants’ criticism is, at best, a linguistic red herring.
11

compensation, which includes, but is not limited to, overtime, premium pay, merit pay,
performance pay, supplemental compensation, pay schedules, and automatic pay
progressions.” 2011 Wis. Act 10 §§ 210, 245, 262, 314. Moreover, unions representing
general employees are specifically prohibited from negotiating fair-share agreements
whereby non-union members pay the unions for the benefit of their collective bargaining
efforts. Id. at §§ 190-192, 198, 200, 203, 219 (repealing or otherwise amending fairshare agreement provisions for general employees).) These restrictions do not apply to
public safety employees. Id. at §§ 210, 262.
Second, once any collective bargaining agreement in effect at the time of Act 10’s
enactment has expired or terminated, unions representing general employees must submit
to recertification each year. At least 51 percent of all general employees in the collective
bargaining unit must vote to recertify -- an absolute majority. 2011 Wis. Act 10 at §§
242, 289, 9132, 9155. This annual recertification requirement differs from the prior law,
which still applies to public safety employees, in at least two important respects. As an
initial matter, no recertification elections are required at any time unless 30 percent of all
general members vote for decertification. Even if an election is called for, a public safety
union is recertified if it obtains 51 percent support from those members who actually vote
-- a simple majority. Wis. Stat. §§ 111.70(3)(a)4, (4)(d)5, 111.83(6); Wis. Admin. Code
§§ ERC 11.02(3), 21.02.
Third, employers are prohibited from deducting union dues or fair-share fees from
the payroll checks of general employees.

2011 Wis. Act 10 at §§ 227, 298 (“The

employer may not deduct labor organization dues from a general employee’s earnings.).
12

This service continues for public safety employees and their unions. Id. at §§ 58, 213,
217, 225, 295, 299.

D. Makeup of “Public Safety Employees” Unions
The two largest protective occupation bargaining units under MERA are the
Milwaukee police officers and the Milwaukee fire fighters. The Milwaukee police officers
are represented by the Milwaukee Police Association (“MPA”) and the Milwaukee fire
fighters are represented by Milwaukee Professional Fire Fighters, Local 215 (“Local
215”).

Both MPA and Local 215 endorsed Governor Walker’s 2010 gubernatorial

campaign and participated in a television advertisement supporting him. The West Allis
Professional Police Association and the Wisconsin Sheriffs and Deputy Sheriffs
Association PAC also endorsed Governor Walker.

All are classified as “public safety

employees.”
Wisconsin Law Enforcement Association (“WLEA”) is the collective bargaining
representative for state troopers, other employees of the Wisconsin State Patrol, and
many other law enforcement personnel who work for the State, including the Capital
Police and the UW Campus Police. Of these groups, the Wisconsin Troopers Association
(“WTA”), the lobbying group for employees of the Wisconsin State Patrol, including
troopers and motor vehicle inspectors, is the only one in WLEA that endorsed Governor
Walker.

They are also the only category of employees classified as “public safety

employees” under Act 10.

13

Correctional officers, probation and parole officers, conservation wardens and fire
crash rescue specialists are also protective occupation employees under Wis. Stat. §
40.02, represented by plaintiff Wisconsin State Employees Union, AFSCME District
Council 24 (“Council 24”), but are not classified as “public safety employees” under the
Act. Special criminal investigation agents in the Wisconsin Department of Justice are
also protective occupation employees, represented by plaintiff AFT-Wisconsin, AFL-CIO
(“AFT-Wisconsin”), but are not classified as “public safety employees” under Act 10.
Council 24 and AFT-Wisconsin, along with all of the other plaintiff unions, endorsed
Governor Walker’s opponent in the 2010 Wisconsin gubernatorial race.
All members of labor organizations that endorsed Governor Walker are classified
as “public safety employees” under Act 10, as well as some who did not. For his part, the
Governor stated in advance of its enactment that “public safety employees” were
exempted from the collective bargaining changes under the Act in order to avoid the
prospect of law enforcement and fire fighting employees striking, orchestrating work
stoppages or engaging in other disruptive conduct in response to its enactment.

14

E. Alleged Adverse Effects on Political Activities of General Employees
Unions10
In addition to traditional collective bargaining activities, the plaintiff unions
engage in lobbying and political activity, including legislative and issue advocacy, get-outthe-vote efforts, voter guides, candidate endorsements, ballot measure activity and
member communications advocating the election or defeat of political candidates.
Independent of losses due to the non-payment of dues by non-members and free-riding
members of general employee unions, the loss of dues revenue caused by the Act’s
prohibition on voluntary payroll dues deductions by remaining members and the
resources exerted in implementing alternative dues collection systems will limit those
unions’ ability to engage in political and other speech activities.
For example, plaintiff Wisconsin Education Association (“WEAC”) provides
reasonable estimates, without contradiction by defendants, that the loss of an automatic
dues deduction option for its voluntary members will amount in an additional $375,000
reduction in the portion of its dues contributions set aside for certain types of political
activity.11 There is also no dispute that this loss of dues revenue will diminish WEAC’s

10

Plaintiffs propose a number of adverse effects on general employees caused by the
challenged provisions of Act 10, primarily focusing on the restrictions to collective
bargaining rights. While defendants do not dispute these facts, they argue that the
impact of Act 10 is largely immaterial to plaintiffs’ claims. As explained below, facts
relevant to the provision prohibiting dues withholding from general employees may be
material to plaintiffs’ First Amendment claim, at least in the court’s view, and therefore
are described here.
11

The estimated losses from the Act’s prohibition on employer dues and “fair-share”
deductions are far larger. For example, the plaintiff unions estimate that they will lose 25
to 50 percent or more of members’ net dues income even if alternative dues collection
systems are established. (Pls.’ PFOFs (dkt. #90) ¶ 65.) WEAC alone estimates losing
15

ability to make independent expenditures on behalf of political candidates and will
require it to lay off four lobbyists from its staff. Finally, again without dispute, WEAC
contends that its reduced political activity budget will seriously impair its ability to
represent the interests of its members before local, state, and federal legislative and
regulatory bodies.

OPINION
I. Equal Protection Claims
The parties agree that the court analyzes and reviews plaintiffs’ Equal Protection
claims under a rational basis standard. “The analysis breaks down into two questions:
(1) whether the statute’s purpose is reasonable, and (2) whether the statute rationally
advances that purpose.” Moran v. Beyer, 734 F.2d 1245, 1247 (7th Cir. 1984) (finding a
statute’s purpose of maintaining marital harmony an “admirable goal,” but finding that
“prevent[ing] a married person from seeking a remedy which is available to an unmarried
person” is not rationally related to that goal). “[I]f a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the legislative classification so long as it
bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631
(1996).

“By requiring that the classification bear a rational relationship to an

independent and legitimate legislative end, we ensure that classifications are not drawn
for the purpose of disadvantaging the group burdened by the law.” Id. at 632.

over half a million dollars per month in union dues. (Declaration of Daniel Burkhalter
(dkt. #16) ¶ 13.)
16

A. Collective Bargaining Restrictions for General Employees
There is no dispute that a state may bar its public employees from engaging in any
form of collective bargaining.

The only question is whether a state may restrict the

collective bargaining rights to one category of public unions while allowing full rights to
another category. The answer to that question is surely “yes,” provided the classifications
do not involve a suspect class and a rational basis exists for a state’s line drawing. Here,
there is no suspect class involved and plaintiffs have failed to present sufficient evidence
that exempting public safety employees from the new, expansive restrictions on collective
bargaining bears no rational relationship to a legitimate government interest in avoiding
strikes of those employees.
As an initial matter, providing basic, emergency services is a core governmental
function. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 575 (1985)
(describing “fire prevention, police protection, sanitation, and public health as typical of
[the services] performed by state and local governments in discharging their dual
functions of administering the public law and furnishing public services” (internal
citation and quotation marks omitted)).

While plaintiffs point out that some police

employees (e.g., the Capital Police and University of Wisconsin Police) and many other
statutorily-recognized “protective occupation employees” were classified as general
employees -- arguably subjecting the public to increased risk of strikes, work stoppages or
other disruptive actions in response to their loss of bargaining rights -- this alone does not
undermine the express purpose of the Act under a rational basis review. Zehner v. Trigg,
133 F.3d 459, 463 (7th Cir. 1997) (“Most of the plaintiffs’ arguments criticize the
17

statute for being either overinclusive or underinclusive; under rational basis review,
however, the classification need not be the most narrowly tailored means available to
achieve the desired end.”).
Wisconsin’s Governor and Legislature may have concluded that they would
extend full bargaining rights to those public unions representing members performing
only the most essential functions for maintaining public safety -- a political judgment left
to those branches of government.

The fact that many of these same unions may

coincidentally -- or as plaintiffs persuasively argue, even strategically -- be the most
supportive of the party in power at the time of enactment is not enough to heighten the
court’s legal scrutiny. See Hearne v. Bd. of Educ. of the City of Chi., 185 F.3d 770, 773 (7th
Cir. 1999) (noting plaintiffs’ argument that the act at issue was passed to “retaliate
against them for their political activities” and still finding it passed rational basis review).
Under our system of government, this is deemed a matter for the next election. Id.
Moreover, given the significant controversy surrounding the passage of Act 10, the
court cannot wholly discount the defendants’ expressed concerns:

exempting public

safety employees from severe restrictions on collective bargaining rights may rationally be
related to a legitimate government interest of avoiding work stoppages by certain public
employees performing core governmental services. In response, plaintiffs point out that
strikes by these same employees is already prohibited by laws, but this alone does not
undermine the State’s rationale. As defendants note, public sector employees have gone
on strike in the past despite statutory, anti-strike provisions.

(Defs.’ Mot. for J. on

Pleadings Br. (dkt. #76) 18.) Ironically enough, the fact that unions representing public
18

safety employees generally supported the Governor in his gubernatorial campaign
undermines plaintiffs’ argument, at least to the extent that public safety unions may have
felt even more wronged if Act 10 had stripped their collective bargaining rights along with
other public unions, making more credible concerns that these unions would resort to
illegal work stoppages or other disruptive activities.
While the court concludes that the carving out of public safety employees under
the Act is rationally-related to a legitimate government interest in avoiding disruptions by
those employees, at least facially, it cannot wholly discount evidence that the linedrawing between public safety employees and general employees was influenced (or
perhaps even dictated) by whether the unions representing these employees supported
Governor Walker’s gubernatorial campaign. The Act’s treatment of the Capital Police,
who endorsed the Governor’s opponent, in comparison to its treatment of state vehicle
inspectors, who endorsed the Governor, best illustrates this suspect line-drawing.12 As
the Seventh Circuit explained in Zehner, however, the statutory definitions of the two
classes may have been over or under inclusive is not enough to render a statute
unconstitutional “under rational basis review.” 133 F.3d at 463.
In addition, as defendants demonstrated, the public employee classification is not
limited solely to those unions who endorsed the Governor, though all unions that

12

While defendants acknowledged that, as part of its study, the “DOA identified a
probable gap in staffing for state building and staff security in the event of large scale
protests,” the Capital Police were placed in the general employee category. (Archer Aff.
(dkt. #42) ¶ 9.) In contrast, all of the Wisconsin Trooper Association’s protective-service
members, including state vehicle inspectors, were placed in the exempted public safety
employee category.
19

endorsed him during the 2010 gubernatorial election fall within the public safety
classification. “In the ordinary case, a law will be sustained if it can be said to advance a
legitimate government interest, even if the law seems unwise or works to the
disadvantage of a particular group[.]” Romer, 517 U.S. at 632. “Indeed, one might think
that this is what election campaigns are all about: candidates run on a certain platform,
political promises made in the campaign are kept (sometimes), and the winners get to
write the laws.” Hearne, 185 F.3d at 773.
This is not an ordinary case in any number of respects, but it is ordinary in the
sense that political favoritism is no grounds for heightened scrutiny under the Equal
Protection clause. Indeed, cases finding the true reason for legislation is pure animus
directed at a particular group -- which cannot form the basis of a legitimate government
interest -- typically involve powerless groups, like “hippies” in Moreno or gay and lesbian
citizens of Colorado in Romer.

Act 10 may cripple unions representing general

employees, but these unions and its members are certainly not a powerless class.
Even assuming the lack of an adequate rationale for distinguishing between public
safety and general employee unions, the Equal Protection Clause does not require that a
state institute changes wholesale.

As discussed, the State of Wisconsin could have

eliminated all rights of public employees to unionize.

That it chose to implement

changes piecemeal, for one class of public unions at this time, while neglecting others, is
not a constitutional violation. “The prohibition of the Equal Protection Clause goes no

20

further than invidious discrimination.” Williamson v. Lee Optical of Okla., 348 U.S. 483,
489 (1955).13

B. Recertification Requirements for General Employee Unions
In defending Act 10, defendants focus principally on plaintiffs’ challenge to
selective restrictions on the collective bargaining rights of general employees, articulating
no more than a surface-level connection between the purported governmental interest in
avoiding strikes of public safety employees and the two other provisions challenged by
plaintiffs -- namely, the annual recertification requirement and the prohibition on dues
withholding for general employees. Perhaps this is because the relationship between the
interest of avoiding strikes and these other challenged provisions is substantially more
tenuous. Act 10’s exemption of public safety employees from the annual recertification
requirement and the prohibition on dues withholding certainly has no obvious
relationship to the government’s supposed concern with disruptions by public safety
employees.
Putting aside the dues withholding provision for the moment, plaintiffs have
established, at least on this record, that requiring annual recertification by a labor union,

As Justice Brandeis explained in his dissent in New State Ice Co. v. Liebmann, 285 U.S.
262, 311 (1932), restricting the states’ ability to experiment “in things social and
economic is a grave responsibility . . . fraught with serious consequences to the nation.”
See also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 43 (1973) (“In such
circumstances, the judiciary is well advised to refrain from imposing on the States
inflexible constitutional restraints that could circumscribe or handicap continued research
and experimentation so vital to finding even partial solutions to educational problems
and to keeping abreast of ever-changing conditions.”).
13

21

much less by an absolute majority, is unprecedented.14 The Supreme Court has indicated
that “[t]he absence of precedent for [an act] is itself instructive; ‘[d]iscriminations of an
unusual character especially suggest careful consideration to determine whether they are
obnoxious to the constitutional provision.’” Romer, 517 U.S. at 633 (quoting Louisville
Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).
Still, the court finds this onerous recertification provision would typically pass the
admittedly low bar of rational basis review, but for defendants’ failure to articulate and
this court’s inability to posit, how an annual, absolute majority vote by a whollyvoluntary union could rationally advance a reasonable purpose. Unlike the concern over
work stoppages by public safety employees restricted as to their bargaining rights, the
requirement for annual proof of support by an absolute majority of union members
applies only to general employee unions who are unable to compel any participation of
any employee in its union activities, even the payment of a “fair share” fee. The only
right granted this union is to bargain collectively on an adjustment in base pay. Even if

14

For this factual finding, plaintiffs offer a declaration from Professor Joseph Slater, who
specializes in public sector labor law and public sector labor history. (Dkt. #23.)
Professor Slater simply states “no other labor law requires yearly elections.” (Id. at ¶ 10.)
In response to plaintiffs’ motion for temporary restraining order, defendants argued that
this statement is conclusory and that the court should reject it. At summary judgment,
defendants go even further, inexplicably contending that it would be “impossible” to
refute such a claim when, in fact, all defendants need have done is offer the court even
one example of a similar requirement in any state or federal collective bargaining law.
While plaintiffs do not develop this proposed fact further at summary judgment,
defendants were placed on notice of Professor Slater’s position and have come forward
with nothing to suggest that Act 10’s annual recertification requirement is a component
of any law governing public, or for that matter, private sector unions. This leaves the
court with an inevitable finding, however hyperbolic it may sound, that this legislation is
indeed unprecedented.
22

this Governor and the Legislature had a reasonable concern that this remaining
bargaining right might be abused, the concern is not rationally advanced by an
unprecedented burden on a voluntary union’s right to continue to exist from year to year.
On the contrary, it seems irrational to impose this unique burden on a voluntary union
with highly restrictive bargaining rights while maintaining far less burden on public safety
unions in which involuntary membership and monetary support continue to be
mandated by law. See State ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State
Emp’t Relations Board, 488 N.E.2d 181, 186 (Ohio 1986) (finding provision which denied
certain Dayton municipal employees collective bargaining rights to be “the very kind of
arbitrary legislative enactment that is prohibited by the equal protection guarantees of
both the Ohio and United States Constitution”).
Even though plaintiffs do not assert a First Amendment claim with respect to this
onerous, annual recertification requirement for unions representing general employees
and their members, focusing instead on the difficulty and expense of securing
recertification in the context of their Equal Protection claim, the court would be remiss
not to at least note the likely burden the annual recertification process imposes on
members’ speech and association rights. Indeed, as it works a direct burden on general
employee unions, its discriminatory application appears indefensible to a First
Amendment challenge. See discussion infra Parts II.A, II.B. Even if not itself a direct
violation of plaintiffs’ First Amendment rights, the appearance of a partisan division of the
two classes of unions is troubling. Id.

23

C. Withholding of Union Dues
Just as removed from the State’s only proffered reason for two classifications of
public unions -- risk of strikes by police and fire fighters -- is the distinction drawn by Act
10 between the automatic deduction of union dues for general employee and public
safety unions. Indeed, it is even more irrational to deny a voluntary set off union dues to
general union members who affirmatively request it while imposing an involuntary set off
of dues by public safety union members who affirmatively oppose it. Even if such an
upside down program somehow rationally advanced the Governor’s and Legislature’s
expressed concern with avoiding a strike by public safety unions, however, this concern
undermines defendants’ argument for the constitutionality of Act 10 under the First
Amendment analysis set forth below. See Truck Drivers & Helpers Local Union No. 728 v.
City of Atlanta, 468 F. Supp. 620, 624 (N.D. Ga. 1979) (“[S]o long as the City of Atlanta
has unions within both its police and fire departments, and so long as it is willing to
withhold union dues from the firemen, it must, under the equal protection clause make
the same open to police employees.”).

II. First Amendment Claim
A. Relationship between Dues and Speech
The plaintiffs represent, and defendants do not dispute, that dues withdrawn from
general employees’ paychecks are used to fund speech. As such, there are two distinct
sets of “speakers” here. First, union members engage in expressive activity by joining a
union. Associations, including unions, provide an opportunity for “like-minded persons

24

to pool their resources in furtherance of common . . . goals.” Buckley v. Valeo, 424 U.S. 1,
23 (1976).

The Supreme Court has long-recognized that the First Amendment is

implicated when dissenting public employees are required to fund union activities,
including speech. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977), criticized
by Ellis v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, Express & Station Employees,
466 U.S. 435, 443 (1984) (criticizing rebate program described in Abood). So, too, the
payment of dues -- some of which specifically fund political activity -- constitutes an
expressive activity. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 359 (2009) (explaining
that support of political activities through payroll deduction “can enhance the unions’
exercise of First Amendment rights”); Cornelius v. NAACP Legal Defense Fund, Inc., 473
U.S. 788, 799 (1985) (“[A]n employee’s contribution in response to a request for funds
functions as a general expression of support for the recipient and its views.”)
For this reason, the United States Supreme Court has repeatedly upheld the rights
of dissenting members to withhold support of union activities unless germane to its role
as exclusive bargaining representative -- the fundamental right the Court has recognized
as justifying mandatory unions. See Davenport v. Wash. Educ. Assoc., 551 U.S. 177, 185
(2007); Chi. Teachers Union v. Hudson, 475 U.S. 292, 305 (1986); Abood, 431 U.S. at 23536. The expressive nature of union membership is, if anything, heightened by the fact
that general employees are no longer required under Act 10 to support any union activities
-- even core activities involving collective bargaining -- making the deduction of union
dues from the paychecks of general employees an entirely voluntary act.

25

Second, unions engage -- indeed, one of their core functions is to engage -- in
speech.

See Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 900 (2010)

(“Corporations and other associations, like individuals, contribute to the discussion,
debate, and the dissemination of information and ideas that the First Amendment seeks
to foster.” (internal citations and quotation marks omitted)). There is no dispute that
the plaintiff unions engage in speech. (See Pls.’ Br. (dkt. #92) 52.) This speech is not
limited to the realm of politics, but also constitutes other forms of expressive activity.
(Id. at 52-53.)
Under Act 10, general employees may still pay voluntary dues and their unions
may still engage in speech, including political speech. In that way, Act 10 does not
prohibit general employee unions’ or their members’ speech, but it does bar the most
efficient method by which these unions collect and their members pay dues. Defendants
also concede that general employee unions have lost dues and will continue to lose dues
because of this barrier to ease of payment.
While upholding a state’s even-handed refusal to withhold dues, the Supreme
Court acknowledged in Ysursa the value of the government’s extension of automatic dues
deductions by labeling the arrangement as “subsidiz[ing] the exercise of a fundamental
right,” “assist[ing] others in funding the expression of particular ideas,” “enhance[ing] the
unions’ exercise of First Amendment rights,” “aid[ing] the unions in their political
activities,” “enlisting the State in support of [their First Amendment] endeavor[s],”
“facilitat[ing] speech,” and “affirmatively assist[ing] . . . speech.” 555 U.S. at 358-59,
362, 364. Similarly, selectively prohibiting public employers from providing this service
26

to general employees and their unions necessarily diminishes their speech -- both general
employees’ ability to support their union financially, as well as the union’s ability to fund
its speech. See Citizens United, 130 S. Ct. at 898 (noting that less spending on speech
“‘necessarily reduces the quantity of expression by restricting the number of issues
discussed, the depth of the exploration, and the size of the audience reached’” (quoting
Buckley, 424 U.S. at 19)). Moreover, the fact that unions can create alternative means to
collect dues does not ameliorate this restriction. Cf. Citizens United, 130 S. Ct. at 897
(finding speech of corporations hindered even though corporations could speak through
the “burdensome alternative” of PACs).
The Supreme Court has also repeatedly recognized that a burden on speech,
rather than an outright ban, is still subject to heightened scrutiny. See Sorrell v. IMS
Health, Inc., 131 S. Ct. 2653, 2664 (2011) (“The Court has recognized that the
‘distinction between laws burdening and laws banning speech is but a matter of degree’
and that the ‘Government’s content-based burdens must satisfy the same rigorous
scrutiny as its content-based bans.’” (quoting United States v. Playboy Entm’t Group, Inc.,
529 U.S. 803, 812 (2000))); see also Wis. Right to Life State Political Action Comm. v.
Barland, 664 F.3d 139, 152 (7th Cir. 2011) (“Laws that burden political speech are
subject to strict scrutiny[.]” (quoting Citizens United, 130 S. Ct. at 898)).
If plaintiffs’ First Amendment claim falters, it is not on proof of an impact on their
speech, but rather on proof that the State is affirmatively abridging that speech.

In

Ysursa, the Supreme Court considered a challenge by public employee unions to an Idaho
statute banning public-employee payroll deductions for political activities on the basis
27

that it violated their free speech rights. Citing Regan v. Taxation with Representation of
Washington, 461 U.S. 540, 549 (1983), the Ysursa Court explained:
The First Amendment . . . protects the right to be free from
government abridgment of speech. While in some contexts
the government must accommodate expression, it is not
required to assist others in funding the expression of
particular ideas, including political ones. . . . [A] legislature’s
decision not to subsidize the exercise of a fundamental right
does not infringe the right, and thus is not subject to strict
scrutiny.
555 U.S. at 358 (emphasis added). Applying rational basis review, the Court went on to
conclude that a prohibition on payroll deductions for political activity was rationally
related to the “State’s interest in avoiding the reality or appearance of government
favoritism or entanglement.” Id. at 359.
In so holding, the majority’s opinion specifically addressed Justice Breyer’s
concern in dissent that “the ban on political payroll deductions may not be applied
evenhandedly.” Id. at 361 n.3. The Court noted that the ban “was not limited to any
particular type of political contribution,” and that it “applies to all organizations” and “to
all employers.” Id. (emphasis added).15 The majority explained, however, that “[i]f the
ban is not enforced evenhandedly, plaintiffs are free to bring an as-applied challenge.” Id.

15

Circuit court cases predating Ysursa similarly held dues withholding bans constitutional
where the bans were applied evenhandedly to all public employees. See, e.g., Toledo Area
AFL-CIO Council v. Pizza, 154 F.3d 307, 319 (6th Cir. 1998) (finding Ohio wage
checkoff ban constitutional where “[a]ll Ohio public employees are denied the benefits
that might be derived from such publicly-administered programs”); Ark. State Highway
Employees Local 1315 v. Kell, 628 F.2d 1099, 1103 (8th Cir. 1980) (holding Department’s
decision to cease withholding of union dues as to all union members constitutional).
Circuit courts also upheld bans where states had limited dues withholding to
organizations open to all state employees, rather than some discrete, selective subset. See,
e.g., City of Charlotte v. Local 660, Int’l Ass’n of Firefighters, 426 U.S. 283, 288 (1976)
28

B. Speaker Discrimination
Unlike the Idaho statute in Ysursa, the dues withholding ban at issue here applies
to a subset of public employees.

General employees and their unions are treated

differently as speakers than public safety employees and their unions.

Moreover, as

Ysursa suggests, such speaker discrimination -- independent of content or viewpoint
discrimination -- can form the basis of a valid First Amendment challenge.

See, e.g.,

Sorrell, 131 S. Ct. at 2664 (applying strict scrutiny review to provision of statute which
disfavors specific speakers, namely pharmaceutical manufacturers, and finding the
provision unconstitutional); Citizens United, 130 S. Ct. at 898 (noting that in addition to
“attempts to disfavor certain subjects or viewpoints,” the First Amendment also prohibits
“restrictions distinguishing among different speakers, allowing speech by some but not
others”) (citing First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978)); Brown v.
Alexander, 718 F.2d 1417, 1426 (6th Cir. 1983) (finding eligibility requirement for dues
withholding that an organization be “independent,” meaning non-affiliated with another
labor organization, “strikes at the heart of freedom of association”).

“The First

Amendment protects speech and speaker, and the ideas that flow from each.” Citizens
United, 130 S. Ct. at 899 (emphasis added).

(holding that city’s provision only allowing withholding for “programs of general interest
in which all city or departmental employees can, without more, participate” did not
violate the Equal Protection Clause); S.C. Educ. Ass’n v. Campbell, 883 F.2d 1251, 1264
(4th Cir. 1989) (rejecting equal protection challenge where legislation allowed paycheck
deductions for general interest groups, but not for special interest groups like the plaintiff
union).
29

In response to this argument, defendants contend that plaintiffs have not
demonstrated that general employees and their unions have different viewpoints than
public safety employees and their unions. For example, defendants offer evidence to
suggest that all public unions may share critical opinions of Act 10. But this does not
mean that general employee unions do not have different political viewpoints than public
safety employee unions. Defendants simply frame the inquiry too narrowly. The fact
that none of the public employee unions falling into the general category endorsed Walker
in the 2010 election and that all of the unions that endorsed Walker fall within the
public safety category certainly suggests that unions representing general employees have
different viewpoints than those of the unions representing public safety employees.
Moreover, Supreme Court jurisprudence and the evidence of record strongly suggests that
the exemption of those unions from Act 10’s prohibition on automatic dues deductions
enhances the ability of unions representing public safety employees to continue to
support this Governor and his party.
Plaintiffs’ First Amendment claim may be reasonably viewed as a challenge to the
underinclusivity of Act 10’s prohibition on dues withholding. Act 10 expressly exempts
public safety employees from the prohibition, representing “a governmental ‘attempt to
give one side of a debatable public question an advantage in expressing its views to the
people.’” City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (quoting First Nat’l Bank of
Boston, 435 U.S. at 785-86). In Ladue, the Supreme Court held that a city ordinance
which “permits commercial establishments, churches and nonprofit organizations to erect
certain signs that are not allowed at residences” violated the free speech rights of those
30

residents.

Id. at 45.

The Court did not rest its holding on content or viewpoint

discrimination. Indeed, the plaintiff’s challenged sign -- a 24- by 36-inch sign printed
with the words, “Say No to War in the Persian Gulf, Call Congress Now” -- would have
been permissible if placed in the yard of a church or a non-profit organization concerned
with pacifist issues.
As the Court explained in Ladue, “[e]xemptions from an otherwise legitimate
regulation of a medium of speech may be noteworthy for a reason quite apart from the
risks of viewpoint and content discrimination: They may diminish the credibility of the
government’s rationale for restricting speech in the first place.”

Id. at 52 (citing

Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 424-26 (1993)); see also Citizens United,
130 S. Ct. at 906 (“The law’s exception for media corporations is, on its own terms, all
but an admission of the invalidity of the antidiscrimination rationale.

And the

exemption results in a further, separate reason for finding this law invalid: Again by its
own terms, the law exempts some corporations but covers others, even though both have
the need or the motive to communicate their views.”).

To ignore the potential for

undermining the credibility of the government’s rationale for supplementing the speech
of public safety employees and their unions over general employees and their unions -where substantial evidence has been offered of their distinct viewpoints -- would be a
particular disservice to the First Amendment.
Recently, the District of Arizona enjoined a state statute (1) requiring all public
employee unions that collect dues through payroll deductions to either affirm to the
employers that none of their funds are used for “political purposes” or specify the
31

percentage of their general fund so used, and (2) for any unions using funds for political
purposes, requiring that the union members provide written authorization each year
permitting paycheck withholding for dues. United Food & Commercial Workers Local 99 v.
Brewer, 817 F. Supp. 2d 1118, at *1 (D. Ariz. Sept. 23, 2011). As with Act 10, these new
regulations on dues withholding did not apply to five categories of “public safety
employees.” Id. The district court concluded that the plaintiff unions were likely to
succeed on the merits of the First Amendment claim because the statute at issue was not
“evenhanded.” Id. at *6 (citing Ysursa, 555 U.S. at 361 n.3). “By imposing its burdens
on the political speech of some unions and other organizations and not imposing like
costs upon other similarly-situated unions, or on other organizations that can use the
funds for political activity, the law is underinclusive and discriminates according to the
speaker.” Id. at *6 (citing City of Ladue, 512 U.S. at 51).
The problem with this court’s reliance on the District of Arizona’s reasoning in
United Food -- as well as on the other First Amendment cases cited above -- is that each
involved an affirmative burden on the speaker, as opposed to a denial of a subsidy. For
example, in United Food, the Arizona statute imposed certain reporting obligations upon
public employee unions that collected dues using deductions that were not imposed on
public safety unions and others. Plaintiffs understandably view the distinction here as
unimportant, and it may well be as a practical matter, but this court cannot ignore the
distinction drawn between impingements on speech and a government’s refusal to
subsidize it. Indeed, this is the very distinction upon which the Ysursa decision turned.
One could argue that any government subsidy to an individual entity or group
32

may increase their voice -- or amplify their speech, if you will -- thereby favoring one
group of speakers over others. In varying degrees, this may well be true. Developers who
are awarded tax incremental financing are likely to “speak” in the public square on all
sorts of issues, not to mention support politicians and political parties who support their
views, including the need for tax incremental financing. So, too, do road builders who vie
for government contracts, as do individuals who receive other subsidies from farm credits
to food stamps (though it may require substantially more collective action to be heard).
No one has argued that any of these subsidies -- available only to members of a favored
group -- violates the First Amendment, or if they have, no court has found it so. For
better or worse (and it may be both), this is how our political system works.
The question is whether the selective supplementation of the fundraising ability of
a class of public unions is somehow different. There are strong arguments that it should
be. First, unions themselves are inherently political, organizing to give collective voice for
bargaining with governmental employers, as well as educating the public and advocating
to politicians and the government, and participating in elections. Indeed, as discussed, a
whole body of case law has grown up around the union’s role as “speaker,” though in the
main to protect the dissenting members of a legally-sanctioned union shop from having
their mandatory dues supplement the speech of the majority. See Communications Workers
of Am. v. Beck, 487 U.S. 735 (1988).16

Here, we have the mirror image. While the State of Wisconsin continues to mandate
automatic dues deductions for dissenting members of public safety unions, it now
prohibits government entities from offering the same subsidy to those individuals who
chose to continue to belong to general employee unions, despite those unions no longer
being able to require union or agency dues from employees who chose not to belong.
16

33

Second, and far less persuasive as a legal matter because it is both fact specific and
subjective (though far more powerful as a rhetorical matter for those who agree), Act 10
was enacted in the maelstrom of a political sea change in Wisconsin, the Act itself being
the principal lightening rod around which the tumult reached its heights, at least to date.
Whether or not the prohibition on automatic dues deductions for most public unions,
but not those who supported the new Governor and Legislature, was an intentional act to
suppress the speech of those who opposed then, it has that appearance.
While “the First Amendment certainly has application in the subsidy context,” the
government “may allocate competitive funding according to criteria that would be
impermissible were direct regulation of speech or a criminal penalty at stake.”

Nat’l

Endowment for the Arts v. Finley, 524 U.S. 569, 587-88 (1998). The obvious exception for
the government’s wide berth in this area arises where the government “invidiously”
discriminates based on viewpoint. Id.; see also Toledo Area AFL-CIO Council v. Pizza, 154
F.3d 307, 320-21 (6th Cir. 1998) (“This is not to say that the government can place
conditions on the receipt of state-created benefits that have the effect of dissuading
people from exercising a constitutional right, even if the government has absolute
discretion as to whether it will provide the benefit in the first instance.”). This is why the
Ysursa court left open the possibility for an “as-applied challenge” if a ban on direct
political contributions were not enforced “evenhandedly.” 555 U.S. at 361. Absent such
proof, however, it appears “the State need only demonstrate a rational basis to justify the
ban on political payroll deductions.” Ysursa, 555 U.S. at 359 (citing Regan, 461 U.S. at
546-51).
34

C. Governmental Interest in Selectively Subsidizing Public Unions
In defending against plaintiffs’ First Amendment challenge, defendants exclusively
argue that the prohibition on the withholding of union dues from paychecks of general
employees does not implicate the First Amendment.

Having rejected defendants’

position, the court now must determine whether the State of Wisconsin has
demonstrated “a rational basis to justify the ban on . . . payroll deductions” and, if so,
whether plaintiffs have advanced evidence of invidious viewpoint discrimination.
Given its position that none is required, the State proffered no justification for the
ban on dues deductions from paychecks.17 One might turn to the justification already
discussed in the Equal Protection context -- that extending the ban further would result

17

In press releases and public addresses, the Governor claimed that Act 10 was needed to
balance the state budget and give state and municipal governments the tools to manage
during economic crisis. There is nothing in the record to suggest prohibiting dues
withholding for some, but not all, public sector employees provides an administrative
savings. Cf. City of Charlotte, 426 U.S. at 286-87 (finding rational basis review met where
city argued and submitted evidence that “allowing withholding only when it benefits all
city or departmental employees is a legitimate method for avoiding the burden of
withholding money for all persons or organizations that request a checkoff”). Nor have
defendants described how this particular provision affords state and municipal
governments increased flexibility to manage the economic crisis, except perhaps to
suppress disfavored unions from opposing certain governmental cuts -- a purpose that
cannot justify the government’s selectively subsidizing union speech. Indeed, the only
justification in the record for prohibiting dues withholding for general employees is
limiting the speech of that class of unions. During the intense debate over Act 10,
Senate Majority Leader Scott Fitzgerald commented that “[i]f we win this battle, and the
money is not there under the auspices of the unions, certainly what you’re going to find
is President Obama is going to have a . . . much more difficult time getting elected and
winning the state of Wisconsin.” (Hawks Aff., Ex. L (dkt. #15-12).) The suppression of
free speech, however, is not a valid government interest. Turner Broad. Sys., Inc. v. Fed.
Communications Comm’n, 520 U.S. 180, 189 (1997) (“A content-neutral regulation will be
sustained under the First Amendment if it advances important governmental interests
unrelated to the suppression of free speech and does not burden substantially more speech than
necessary to further those interests.” (emphasis added)).
35

in protests from public safety unions -- but that plays even less well in the First
Amendment context, which typically would require the government to proffer a reason
justifying its decision not to extend the same subsidy to the disfavored speaker. Absent
evidence of viewpoint discrimination, perhaps it is enough that the State of Wisconsin
merely chose a dividing line between two classes of unions and applied it evenhandedly,
but the court has difficulty with that result where the only apparent reason for
discriminating between the entities is their different viewpoints. Indeed, the very reason
proffered by the Supreme Court in Ysursa for not interfering in an outright ban on all
political payroll deductions for public unions -- the State’s interest in avoiding the reality
or appearance of favoritism or entanglement with partisan politics -- is the very reason
this court cannot uphold the State of Wisconsin’s apparent, if not actual, favoritism and
entanglement in partisan politics by discriminating in favor of fundraising efforts on
behalf of public safety unions over general employee unions.

III.Remedy
The court is cognizant that the primary impact of an injunction requiring a return
to automatic dues deductions for general employee unions will fall on already burdened
local, county and state governmental entities. On the other hand, these unions and their
members have been without the benefits of these deductions nine months and are, in this
court’s view at least, entitled to the same subsidy extended by the State of Wisconsin to

36

other public employee unions and their members.18 Accordingly, the court will enter an
injunction requiring a return to automatic dues deductions for all members of public
unions no later than May 31, 2012. This should give sufficient time for the defendants
to seek a stay of this injunction from the Seventh Circuit Court of Appeals, and for
government entities to adopt a workable procedure to return to automatic deductions
should the Seventh Circuit deny a stay, while balancing the plaintiffs’ and their nowvoluntary members’ rights to a return to payroll deductions.
Consistent with the above, the court will also immediately enjoin Act 10’s annual,
mandatory recertification of general employee unions by an absolute majority of their
members.

ORDER
IT IS ORDERED that:
1)

Kristi Lacroix’s, Nathan Berish’s and Ricardo Cruz’s motion to intervene
(dkt. #56) is DENIED;

2)

Wisconsin Law Enforcement Association’s, Tracy A. Fuller’s, Jill A. Buzick’s
and Kathryn M. Rozmarynoski’s motion to intervene (dkt. #63) is
DENIED;

3)

Kristi Lacroix’s motion to file an amicus brief (dkt. #45) is GRANTED;

4)

Lacroix’s Berish’s and Cruz’s motion to file an amicus brief (dkt. #91) is
GRANTED;

5)

James Holmes’ motion to file an amicus brief (dkt. #67) is DENIED;

18

Of course, the state could change its law to prohibit withholding for all unions, but
that is not within the purview of this court.
37

6)

Landmark Legal Foundation’s and United States Justice Foundation’s
motions to file amicus briefs (dkt. ##98, 102) are DENIED;

7)

defendants’ motion to withdraw the affidavit of Cynthia Archer and to file
an amended response to plaintiffs’ preliminary injunction motion (dkt. #80)
is GRANTED IN PART AND DENIED IN PART; defendants’ request to
withdraw Archer’s affidavit is GRANTED although the court will consider it
to the extent relied upon by plaintiffs; defendants’ request to file an
amended response is DENIED; and defendants’ request to bar all future
discovery on the information in Archer’s affidavit is GRANTED;

8)

plaintiffs’ motions for oral argument (dkt. ##12, 24, 105) are DENIED.;

9)

plaintiffs’ motion to file a brief in reply (dkt. #48) is GRANTED;

10) plaintiffs’ motion for temporary restraining order (dkt. #11) is DENIED AS
MOOT;
11) defendants’ motion for judgment on the pleadings (dkt. #75) is GRANTED
as to plaintiffs’ Equal Protection challenge to Act 10’s restrictions on
collective bargaining of general employees and their unions and DENIED in
all other respects;
12) plaintiffs’ motion for summary judgment (dkt. #88) is GRANTED as to
their Equal Protection challenge to Act 10’s annual recertification
requirement for general employees unions and their First Amendment
challenge as to Act 10’s prohibition of dues withholding for general
employees and DENIED in all other respects;
13) Sections 227, 242, 289, 298, 9132 and 9155 of 2011 Wis. Act 10 are
declared null and void;
14) defendants are enjoined from enforcing Wis. Act 10’s recertification
requirements for general employees unions;
15) defendants are enjoined from prohibiting deductions for general employee
unions and directed to facilitate voluntary deductions on or before May 31,
2012; and
16) the clerk of the court enter judgment consistent with this order and close
this case.

38

Entered this 30th day of March, 2012.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

39