What is the Point of the Latest Legal Challenge to the Budget Repair Bill?

The day after the Wisconsin Supreme Court reversed a lower court's ruling that the adoption of the budget repair bill was invalid, nearly all of the unions representing public employees in Wisconsin combined forces to file a 29-page complaint challenging the bill on constitutional grounds.

The lawsuit focuses on the Budget Repair Bill's differing treatment of:
1) Law enforcement officers that are represented by unions that supported Walker's gubanatorial campaign;
2) Law enforcement officers that are represented by unions that did not support Walker's gubanatorial campaign;
3) All other public sector workers represented by unions.

Employees in the first category retain most collective bargaining rights and potentially better pension and health insurance benefits.  Employees in the second and third categories lose most collective bargaining rights and will likely have higher pension and health insurance costs.  The lawsuit alleges that this violates the Equal Protection Clause of the United State Constitution, which is contained in the 14th Amendment. 

The Fourteenth Amendment provides that:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Laws make distinctions among different types of people regularly (only the elderly qualify for medicare, only those under 21 are punished for drinking alcohol), but where people are similary situated, a government must have a rational basis for treating classes of people differently.  The complaint filed today argues that not only is there no rational basis for taking collective bargaining rights away from some public employees and not others, but that the basis is the impermissible one of granting political favors.

The lawsuit also alleges violations of the First Amendment.  The Budget Repair Bill prohibits unions from collecting union dues from the paychecks of public employees in the second and third categories, even with the employees' consent.  The lawsuit alleges that that these restrictions amount to an infringement of speech, because unions are deprived of the financial resources necessary to engage in political speech activities on behalf of their members.

The link to the complaint is below.  The suit was filed in federal court in Madison, and the plaintiffs have requested an injunction. 

http://www.thewheelerreport.com/releases/June11/0615/0615weacvstate.pdf

How Much Authority do States Have Over Labor Rights?

A few weeks ago a federal court in Chicago issued a decision that received some comment on Daily Kos, and raised the question of how much authority states really have to regulate labor rights.  The case, Teamsters Local 727 v. Metropolitan Pier and Exposition Authority (MPEA), arose when the Illinois legislature amended the state statute governing operations at McCormick Place, a major convention venue in Chicago. 

The MPEA is a unit of local government created to promote business and tourism in Illinois.  The MPEA operates and manages McCormick place and contracts with a variety of private entities who lease space and arrange conventions.  Those private entitites bargain with unions such as the Teamsters and the Carpenters over labor agreements that establish the terms and conditions for labor at McCormick place.  The union laborers are private employees, not public employees, and therefore their collective bargaining rights are protected by the National Labor Relations Act (NLRA), which is a federal law.  Over the last several decades, U.S. Supreme Court decisions have established that federal labor law preempts state law.  In other words, local and state governments cannot change or interfere with the rights that privately employed individuals have under the NLRA.  One exception to the preemption doctrine is that when states are contracting for services with private entities, the state can condition its business on the entities adhering to certain labor standards.  In other words, when a local government is acting as a consumer, it can makes demands similar to those that other consumers can make.

In 2010 the Illinois legislature amended the law governing MPEA operations, and in the process enacted provisions governing hours, wage rates, the size of work crews, and other working conditions of private employees at McCormick Place.  Parts of the amendments contradicted provisions in the existing collective bargaining agreements.  The Teamsters and Carpenters filed suit, claiming that the existing collective bargaining agreements were protected by federal labor law, and federal labor law preempts state law.  The federal district court in Chicago agreed, and enjoined the MPEA from enforcing those provisions of the law that attempted to govern the labor standards of the private employees at McCormick Place.

Despite the attention the decision received, it did not establish any new law, and it has little relevance to the immediate issues in Wisconsin.  Federal law protects private employees' labor rights.  Indeed it is a common fallacy that only unionized employees have protections under the NLRA.  The NLRA protects the right of nearly every private employee in the United States to join a labor union and bring a labor union into his or her workplace.  The NLRA requires employers to bargain in good faith with employees' bargaining representatives, provides a vehicle for enforcing collective bargaining agreements, and even protects the right of non-unionized employees to engage in collective action.  The NLRA does not, however, have anything to do with the labor rights of public employees.  The extent of state and local employees' labor rights is entirely a matter of state and local law, and therefore within the control of state and local elected officials.  In Wisconsin, the State Employment Labor Relations Act (SELRA) and the Municipal Employment Relations Act (MERA) govern the rights of public employees.  SELRA and MERA are the state and local corollaries of the NLRA.  The Budget Repair Bill signed into law by Governor Walker amends SELRA and MERA, only affects the rights of Wisconsin's public employees, and therefore is not preempted by federal labor laws.

Can't Someone Sue Walker for Unfair Labor Practices?

Yes.  Someone can.  And someone has.  To be exact, the Wisconsin State Employees Union, AFT-Wisconsin, the Wisconsin Education Association Counsel, the State Engineers Association, and the Wisconsin Law Enforcement Association have each filed their own unfair labor practice charges against Governor Scott Walker.  While I have not seen copies of all of the complaints, I understand that the Wisconsin State Employees Union's complaint alleges that the governor has refused to bargain a new contract. 

Under the Municipal Employment Relations Act (MERA) and the State Employment Relations Act (SELRA), the state and other municipal employers have a duty to engage in good faith bargaining with employees' collective bargaining representative once a labor contract nears the end of its term.  If an employer refuses to bargain, the collective bargaining representative can file a complaint with the Wisconsin Employment Relations Commission (WERC) which has the authority to hold a hearing, reach a decision, and order bargaining and other remedies.  If a party is unhappy with a decision of the WERC, that party can appeal the WERC's decision to the state courts.

MERA and SELRA are the laws that Governor Walker seeks to radically amend with the Budget Repair Bill, but the Budget Repair Bill is not yet law.  SELRA governs the collective bargaining relationship between the state and its employees for the time being.  As one of the WERC complaints states: "Governor Walker has the power to propose draconian legislation grounded in his anti-union animus.  However such proposals do not change the law or repeal the obligations of the Respondents under Wisconsin law."  http://www.wisea.org/Files/Official/SEAprohPracticeCompl110308.pdf

Can the LRB Publish the Budget Repair Bill?

Update 8:46 p.m., March 25:  The Legislative Reference Bureau is taking the position that it had a legal duty to publish the bill, but that its publication does not result in the budget bill becoming law.  Rather, the Secretary of State must also fulfill his duty to order it published before it can become law.  The LRB's position is at odds with the Governor's assertion that the bill is now law, but consistent with Judge Sumi's order enjoining not just the publication, but the implementation of the budget bill.  Should the Governor proceed with implementing the budget repair bill he may not be in violation of the judge's order (since he is not named as a defendant) but he would have no lawful basis for his actions, since the budget repair bill simply is not law.  See the LRB's explanation at:  http://www.wispolitics.com/index.iml?Article=231334

Let me first say that when lawyers do research and arrive at conclusions, they rely heavily on precedent, and nearly everything that has happened in the last few months in Wisconsin is unprecedented.  The latest is the Legislative Reference Bureau's publication of the the Budget Repair Bill despite Dane County Judge MaryAnn Sumi temporarily enjoining publication.  I'm going to go out on a limb and say that someone, possibly one of the Fitzgeralds, will be held in contempt of court.  I'm going to stay pretty close to the trunk and say there will be a court motion to challenge the effect of the bill's publication Monday morning. The Final paragraph of Judge Sumi's order reads:

"I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.

The next step in implementation of that law would be the publication of that law by the Secretary of

State. He is restrained and enjoined from such publication until further order of this court."

While the court specifically restrains the Secretary of State, the first sentence doesn't limit the force of the court's order.  Furthermore, all parties to a legal action are generally bound to court orders in that action unless the court states otherwise, and the defendants in the action include the Fitzgerald brothers, Senator Micheal Ellis, and Rep. Scott Suder.  So, the question of the day, is who directed that the bill be published?  More to come as events unfold.

Can the Amended Budget Repair Bill be Challenged for Including Fiscal Items?

A reader has raised the questions of whether the amended budget repair bill that was approved by the Assembly is the same one that was voted on by the Senate earlier this month, and why the amended budget repair bill isn't being challenged on the grounds that it includes fiscal items and did not have the necessary 3/5 quorum in the Senate.

Unfortunately, no one really knows whether the bill that the Assembly passed is the same as the bill that the Senate passed, because the amended bill was not available in sufficient time for review before the Senate vote.  We do know that the Legislative Fiscal Bureau prepared one analysis immediately prior to the Senate vote, and then prepared a revised analysis prior to the Assembly vote the next day.

There is a legal challenge pending to the passage of the amended budget bill on the grounds that it contains fiscal items.  This lawsuit has been overshadowed by the complaint filed by the Dane County District Attorney alleging violations of the open meetings law, which has resulted in a temporary injunction against the publication of the law.  The lawsuit alleging that the amended budget bill contains fiscal items was filed by Dane County on March 16.  Dane County claims that the passage of the law violated the Wisconsin Constitution because it occurred with less than the 3/5 quorum of the Senate required for fiscal matters.  Dane County's lawsuit also alleges a violation of the open meetings law and requests a temporary injunction.  Dane County's lawsuit is set for a court hearing on April 12.  Presumably the reason it is not being heard earlier is because the District Attorney's complaint has already resulted in a temporary injunction of the law's publication.  A copy of Dane County's lawsuit is available here:  http://danedocs.countyofdane.com/webdocs/pdf/court/amended.pdf

Are Municipalities Putting the State on the Hook for Public Employee Pensions?

The question on the table is: Who pays the teachers' pensions, and more specifically where does the money come from? Is it a state fund, a county fund, or a city fund?

All school districts in Wisconsin (as far as I can tell) participate in the Wisconsin Retirement System (WRS).  Any municipal employer in Wisconsin can participate in the WRS, and the State of Wisconsin and the Milwauke Public School system are participants.  Milwaukee County and the City of Milwaukee have their own retirement programs and do not participate in WRS. 

Chapter 40 of the Wisconsin Statutes governs the operations of the WRS. 
http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=top
The laws governing the WRS require that both employers and employees contribute a percentage of employees' wages to the public employee trust fund administered by the WRS.  Under existing law, employers can agree to pay their own contributions AND the employees' contributions.  The Budget Repair Bill would prohibit such agreements.

The employer and employee contributions go into the public employee trust fund, not the general budget of the State of Wisconsin.  The WRS has the power to assess additional contributions against municipal employers and employees to deal with unfunded liabilities, usually due to market downturns.  Municipal employers who fail to remit full contributions on behalf of their employees can have their delinquencies withheld from their municipalities' state aid.  The State's only liability to the WRS is for contributions on behalf of state employees.  All retirement benefits for participating state and municipal employees are paid entirely out of the public employee trust fund. 

On a related note, many supporters of the Budget Repair Bill cite the fact that public employees can retire at age 55.  While that is true, the vast majority of employees, including teachers, cannot collect their full retirement benefits until age 65.  Police, firefighters, and elected officials are the major exceptions.  Regardless of when public employees draw retirement, their benefits come entirely from the public employee trust fund with no impact on the State's annual budget.  Reports are that retirement benefits from the public employee trust fund are fully funded for the next 19 years, however since contributions to the trust fund are percentages of wages, public employee layoffs and decreased wages will negatively affect contributions to the trust fund, possibly resulting in unfunded liabilities earlier than 2030.

The following link is to the website of the Wisconsin Department of Employee Trust Funds, and contains a wealth of interesting facts:  http://etf.wi.gov/news/2011_Contribution_Rate_FAQ.pdf

Can Walker Protect Himself From Recall by Changing the Recall Laws?

The provision governing recall elections is an article of the Wisconsin Constitution, not a statute - Article XIII, Section 12, to be exact. The process for changing a constitutional article is more complicated and time-consuming than changing a statute, and cannot be completed in less than two years.

An amendment to an article of the Constitution must first pass both the state assembly and the state senate.  Then the amendment must be referred to the next legislature chosen in the next general election.  The amendment must be published for three months before being voted upon by the new legislature.  If the amendment passes both houses of the new legislature, it must be put to the voters of the state and approved by a majority of voters.  If the amendment is approved by the majority of voters, it becomes part of the Wisconsin Constitution.  The amendment provisions of the Constitution are in Article 12, Section 1.

The Open Meetings Complaint Against Scott Walker

Here is the Open Meetings Complaint filed against Scott Walker.  As a result of this complaint, on March 18 a Dane County judge issued a temporary restraining order prohibiting the Budget Repair Bill from going into effect until the complaint can be heard on its merits.
http://www.thewheelerreport.com/releases/March11/0316/0316danecounty.pdf

Does the Budget Repair Bill Circumscribe Teacher's Bargaining all that Much?

The question addressed today is whether the Budget Repair Bill rules out collective bargaining for all teacher unions, or only those at the statewide level?  Are there still some possibilities for local (district) protections, or not?

The Budget Repair Bill prohibits collective bargaining over anything other than wages, by all municipal employees other than police and firefighters.  The fact that the Walker administration has postured the Budget Repair Bill as a means of resolving a state budget deficit has confused many about the extent of the bill's restrictions on collective bargaining.  Wisconsin has a very comprehensive law known as the Municipal Employment Relations Act (MERA).  MERA governs labor relations for all municipal employees.  There are some sections of MERA that govern specific classes of employees (such as state employees, teachers, or police and firefighters) and other sections that govern public employees generally. Under MERA, a municipal employer includes "any city, county, village, town, metropolitan sewerage district, [or] school district".

The Budget Repair Bill repeals many sections of MERA and amends many others.  One of the amendments creates a class of "general municipal employees" that includes all teachers employed by public school districts.  Another amendment restricts "general municipal employees'" right to bargain to wages.  The most significant amendment is fairly straightforward:

111.70 (4) (mb) of the statutes is created to read:

111.70 (4) (mb) Prohibited subjects of bargaining; general municipal employees.

The municipal employer is prohibited from bargaining collectively with a collective

bargaining unit containing a general municipal employee with respect to any of the

following:

1. Any factor or condition of employment except wages, which includes only

total base wages and excludes any other compensation, which includes, but is not

limited to, overtime, premium pay, merit pay, performance pay, supplemental

compensation, pay schedules, and automatic pay progressions.

There have been questions about the viability of settled contract following the adoption of the Budget Repair Bill.  The law prohibits bargaining, not the resulting contracts.  Thus contracts that are settled before the law goes into effect are enforceable, and teachers and school districts can rely on the protections in their contracts for the time being.  The following aspects of the Budget Repair Bill call into question, however, the long-term viability of those contracts:
1) The Bill's prohibition of contracts longer than one year
2) The Bill's requirement that a bargaining unit vote annually on union representation; If teachers in a district voted out their union, the contracts would no longer be enforceable.

The preceding post is not legal advice and should not be construed as such.  The information is general commentary on a matter of public interest, and the statements therein should not be relied upon by individuals for the purpose of any legal matter or proceeding.  Any person desiring legal advice on these or any other matters should retain an attorney.

Can Fitzgerald Really Take Away the Senators' Ability to Vote in Committees?

This Monday Senate Majority Leader Scott Fitzgerald did the legislative equivalent of taking away the Democratic senators' birthdays:  He decreed that the Democrats will not be able to cast votes in committee.  http://wispolitics.com/index.iml?Article=230087  Fitzgerald's move, while childish and shocking, is probably not a violation of law, but it is also of little significance.

In attempting to understand Fitzgerald's move, it is useful to first look at what Fitzgerald cannot do.  The Wisconsin Constitution protects the Democrats from arrest, which would normally be one way of executing a contempt order.  The Wisconsin statutes also list only a very few grounds on which either the senate or assembly can hold a person in contempt, and none of the grounds apply here.  The senate does have its own rule requiring members to be present for votes and allowing the Sergeant at Arms to "find and bring in such absentees."  This rule appears to be Fitzgerald's basis for holding the Democrats in contempt, and in February he flirted with the idea of hauling the Democrats into the senate by force, but someone has apparently since informed Fitzgerald of Constitution's bar on arresting legislators.

Wisconsin statutes do not expressly govern the operations of legislative committees.  The senate rules govern senate committees, and those rules give the majority party considerable authority over the operation of standing committees. It is unclear whether Fitzgerald intends to prohibit Democrats from voting in the joint finance committee.  There are statutes that govern the role of the joint finance committee in the legislative process, and the budget will have to move through the joint finance committee before making it to a vote in the senate or assembly.  It is possible that irregularities in the functioning of the joint finance committee could undercut the validity of a bill later signed into law.  If, however, Fitzgerald only enforces his decree in standing committees - where Republicans hold controlling majorities - then the decree probably does not violate any law but also will not have any impact on the passage of bills.

Sources:
Senate Rules 15, 16, 84
Wis. Stats. 13.19, 13.26
Wis. Con. Art. IV, Sections 8, 15

The preceding post is not legal advice and should not be construed as such.  The information is general commentary on a matter of public interest, and the statements therein should not be relied upon by individuals for the purpose of any legal matter or proceeding.  Any person desiring legal advice on these or any other matters should retain an attorney.