Wis. Educ. Ass'n Council v. Walker

• Decision Date: 18 January 2013
• Docket Number: 12–2011,12–2058.,Nos. 12–1854,s. 12–1854
• Citation: 705 F.3d 640
• Parties: WISCONSIN EDUCATION ASSOCIATION COUNCIL, et al., Plaintiffs–Appellees, Cross–Appellants, v. Scott WALKER, Governor of Wisconsin, et al., Defendants–Appellants, Cross–Appellees. Appeal of Kristi LaCroix, et al., Proposed Intervenors/Appellants, Cross–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

705 F.3d 640

WISCONSIN EDUCATION ASSOCIATION COUNCIL, et al., Plaintiffs–Appellees, Cross–Appellants,

v. Scott WALKER, Governor of Wisconsin, et al., Defendants–Appellants, Cross–Appellees.Appeal of Kristi LaCroix, et al., Proposed Intervenors/Appellants, Cross–Appellees.

Nos. 12–1854, 12–2011, 12–2058.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 2012.

Decided Jan. 18, 2013.

Negative Treatment Reconsidered

W.S.A. 111.70(3g), (4)(d)(3)(b), 111.83(3)(b), 111.845.

Leon Dayan (argued), Attorney, Bredhoff & Kaiser, Washington, DC, Aaron N. Halstead, Attorney, Hawks Quindel, S.C., Madison, WI, Marianne G. Robbins, Attorney, Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, Milwaukee, WI, for Plaintiffs–Appellees, Cross–Appellants.

Steven C. Kilpatrick, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Eric M. McLeod, Attorney, Michael Best & Friedrich LLP, Madison, WI, Joseph L. Olson (argued), Attorney, Michael Best & Friedrich LLP, Milwaukee, WI, for Defendants–Appellants, Cross–Appellees.

Milton L. Chappell, Attorney, National Right to Work Legal Defense Foundation, Springfield, VA, Richard M. Esenberg, Attorney, Wisconsin Institute for Law & Liberty, Milwaukee, WI, and Glenn M. Taubman, Attorney, National Right to Work Legal Defense Foundation, Springfield, VA, for Proposed Intervenors/Appellants, Cross-Appellees.

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge.

In 2011, the Wisconsin Legislature passed Act 10, a budget repair bill proposed by recently elected Governor Scott Walker. Act 10 significantly altered the state's public employee labor laws, creating two distinct classes of public employees—a select group of “public safety employees” with the remainder classified as “general employees.” Among other things, the Act prohibited general employees from collectively bargaining on issues other than “base wages,” imposed rigorous recertification requirements on them, and prohibited their employers from deducting union dues from paychecks. The Act did not, however, subject public safety employees or their unions to the same requirements; they kept the same rights they had under the pre-Act 10 scheme. The proposal and subsequent enactment of Act 10 was controversial and received nationwide publicity. See Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 144–45 (7th Cir.2011).

Plaintiffs and cross-appellants, representing seven of Wisconsin's largest public sector unions (the “Unions”), filed suit against defendants-appellants Governor Scott Walker and other state actors, challenging three provisions of the statute—the limitations on collective bargaining, the recertification requirements, and a prohibition on payroll deduction of dues—under the Equal Protection Clause. They also challenged the payroll deduction provision under the First Amendment. The district court invalidated Act 10's recertification and payroll deduction provisions, but upheld the statute's limitation on collective bargaining. We now uphold Act 10 in its entirety.

I. Background

A. Factual Background

Wisconsin grants public sector employees the right to bargain collectively through two principal labor laws—the Municipal Employment Relations Act (“MERA”) and the State Employee Labor Relations Act (“SELRA”)—that define the rights of employees and unions as well as their relationship with governmental employers. Act 10 amended these statutes, imposing new burdens on a group labeled “general employees.” 2011–2012 Wis. Legis. Serv. 29 (West). Unions representing “public safety employees,” however, continued operating under the pre-Act 10 scheme. Proposal and enactment of Act 10 triggered widespread protest from Wisconsin's public sector labor unions, including the Unions' challenge to the constitutionality of certain provisions of Act 10.

1. Act 10 Creates Two Categories of Public Employees

All of the Unions' constitutional claims arise from the legislature's decision to subject general employees but not public safety employees to Act 10's restrictions on union activity. All employees governed by MERA and SELRA are “general employees” unless specifically identified as “public safety employees” in Act 10. In creating this distinct group, the Act cross-references seven of the twenty-two occupations listed in a separate statute, which governs the Wisconsin Public Employee Trust Fund. SeeWis. Stat. § 40.02(48)(am). Under SELRA, Act 10 identifies state troopers and state motor vehicle inspectors as public safety employees. Wis. Stat. § 111.81(15r). Act 10 did not, however, identify the Capitol Police and the University of Wisconsin Police as public safety employees, even though both occupations qualified as such under the trust fund statute. CompareWis. Stat. § 40.02(48)(am), withWis. Stat. § 111.81(15r). Act 10's list of public safety employees under MERA is somewhat longer, including (1) police officers, (2) fire fighters, (3) deputy sheriffs, (4) county traffic police officers, and (5) village employees that perform fire or police protection. Wis. Stat. § 111.70(1)(mm).

Notably relevant to the arguments in this appeal, when Governor Walker ran for election in 2010, only five public employee organizations endorsed his candidacy during the campaign: (1) the Wisconsin Troopers Association, which represents state troopers and motor vehicle inspectors; (2) the Milwaukee Police Association; (3) the Milwaukee Professional Fire Fighters Association; (4) the West Allis Professional Police Association; and (5) the Wisconsin Sheriffs and Deputy Sheriffs Association Political Action Committee. Each of these organizations represents employees categorized as public safety employees under Act 10. The public safety employee definition, however, also includes employee organizations that opposed or failed to endorse the governor. For instance, all state, municipal, and village police officers and firefighters qualify as public safety employees even though only those in Milwaukee and police officers in West Allis endorsed Walker. In addition, the Professional Firefighters of Wisconsin ¹ and the Wisconsin Professional Police Association endorsed Walker's opponent. And the head of the Madison firefighters' union called for a general strike in response to Act 10, despite its employees' public safety classification.

2. Unions Challenge Three Parts of Act 10

The Unions challenge three different parts of Act 10: (1) limitations on the permissible collective bargaining subjects of general employees; (2) stricter recertification requirements for general employee unions; and (3) a prohibition on the payroll deduction of union dues for general employees.

First, prior to Act 10, MERA and SELRA permitted public employees to collectively bargain over a broad array of subjects including their wages and conditions of employment. Moreover, these unions could negotiate “fair-share” agreements, which require employees opting out of union membership to pay “their proportionate share of the cost of the collective bargaining process and contract administration.” SeeWis. Stat. § 111.81(9). Act 10, however, limits general employee unions to the single topic of the “total base wages and excludes any other compensation.” Wis. Stat. §§ 111.70(1)(a), (4)(mb), 111.81(1), 111.91(3). It also forbids fair-share agreements. Wis. Stat. §§ 111.70(2), 111.845.

Next, MERA and SELRA formerly permitted municipal or state employees to petition the Wisconsin Employment Relations Commission to hold an election to select a particular union as the employees' exclusive bargaining agent. Certification required a simple majority. Once certified, the union remained the employees' exclusive agent until thirty percent of the employees petitioned for a decertification election. That election required a simple majority to certify a union as the exclusive collective bargaining representative. Act 10, on the other hand, requires general employee unions to submit to an annual “recertification” election in which an absolute majority—“at least 51 percent of the votes of all of the general ... employees in the collective bargaining unit” (not just those voting)—must approve the union to retain its status as the employees' agent. Wis. Stat. § 111.70(4)(d) 3.b., 111.83(3)(b).

Third, under a separate statute, Wisconsin permitted state employees to allow their employer to deduct a portion of their salaries for “[p]ayment of dues to employe[e] organizations,” including unions. Municipalities could do likewise, provided that they extended the opportunity to all employee organizations with members in the particular unit. See Milwaukee Fed'n of Teachers Local 252 v. Wis. Emp. Relations Comm'n, 83 Wis.2d 588, 266 N.W.2d 314 (1978). Act 10 prohibits all payroll deductions for general employees. Wis. Stat. § 20.921(1)(a)2.

B. Procedural Background

The Unions filed suit in federal district court alleging that all three provisions violated the Equal Protection Clause because of the Act's differential treatment of public safety and general employees. They also claimed that the prohibition on payroll deductions for general employees violated the First Amendment on several grounds, including that the payroll deduction prohibition targeted employees who had not endorsed or otherwise politically supported Governor Walker when he ran for office in 2010.

1. General Employees Move to Intervene

Several municipal employees (the “Employees”) moved to intervene in defense of Act 10. SeeFed.R.Civ.P. 24(a). They were not members of the union, but pre-Act 10 law required them to pay union expenses under a fair–share agreement. After Act 10, the Employees were classified as general employees and thus no longer responsible for these dues.

2. Motion for Summary Judgment

The state moved for judgment on the pleadings, Fed.R.Civ.P. 12(c), and the Unions cross-moved for summary judgment on all claims, Fed.R.Civ.P. 56. Because the facts in the case...