The unions that won a circuit court ruling to overturn Wisconsin’s Act 10, the 2011 law stripping most public employees’ collective bargaining rights, are asking the Wisconsin Supreme Court to reinstate that ruling after an appeals court reversed the lower court.
The plaintiffs filed their state Supreme Court appeal Monday. They include unions affiliated with the Wisconsin Education Association Council, the American Federation of Teachers, the American Federation of State, County and Municipal Employees, the Service Employees International Union and the Teamsters.
Act 10, one of the signature laws passed early in former Gov. Scott Walker’s two terms, ended collective bargaining rights for most state and local employees, making an exception for certain public safety employees. The law survived a series of court challenges in the years immediately after its passage.
In December 2024, however, Dane County Circuit Court Judge Jacob Frost ruled that the law made an arbitrary distinction between the public safety employees who kept their union rights under Act 10 and other public safety employees who lost those rights.
State Capitol Police, University of Wisconsin Police, and state conservation wardens were “treated unequally with no rational basis for that difference” when they were denied collective bargaining, Frost ruled, and for that reason, Act 10 violated the Wisconsin Constitution’s equal protection clause.
The law remained in place pending appeals, and more than 18 months later, the 2nd District Court of Appeals overturned Frost’s ruling in a 2-1 decision July 29.
The Legislature’s reasoning for making the distinction wasn’t an issue, so long as there are “any reasonably conceivable state of facts that could provide a rational basis for the classification,” Judges Mark Gundrum and Shelley Grogan wrote.
Judge Lisa Neubauer dissented, arguing that the unions that kept their bargaining rights had all supported Walker’s election in 2010 just months before he took office and signed Act 10 into law. Excluding them from the law while subjecting other public safety employees to its restrictions “is not based on any identified ‘substantial distinction’ that makes the first group really different from the other,” Neubauer wrote.
The new appeal quotes Neubauer’s dissent in arguing for the justices to take up the case.
“This Court should accept review and reaffirm that, as Judge Neubauer put it in her dissent, ‘rational-basis review is not a rubber stamp,’” the unions’ motion states. “Here, because Act 10’s classification between ‘public safety’ and ‘general’ employees cannot survive anything greater than rubber-stamp-level scrutiny, that classification violates Article I, Section 1 of the Wisconsin Constitution.”
The new appeal also challenges a finding from the appeals court majority, which found Wisconsin’s equal protection clause was identical to the federal equal protection clause and that a 2013 federal appeals court ruling had already found Act 10 constitutional.
