Wisconsin Educ. Ass'n Council v. Walker

• Decision Date: 30 March 2012
• Docket Number: No. 11–cv–428–wmc.,11–cv–428–wmc.
• Citation: 824 F.Supp.2d 856,192 L.R.R.M. (BNA) 3299
• Parties: 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, v. 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.
• Court: U.S. District Court — Western District of Wisconsin

192 L.R.R.M. (BNA) 3299

824 F.Supp.2d 856

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,

v.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.

No. 11–cv–428–wmc.

United States District Court, W.D. Wisconsin.

March 30, 2012.

Held Unconstitutional

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

Aaron N. Halstead, Hawks Quindel Ehlke & Perry, S.C., Peggy A. Lautenschlager, Lawton & Cates, S.C., Kurt C. Kobelt, Wisconsin Education Association Council, Madison, WI, Barbara Zack Quindel, Timothy E. Hawks, Hawks Quindel, S.C., Marianne Goldstein Robbins, Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Milwaukee, WI, Jason Walta, National Education Association, Jeremiah Collins, John West, Leon Dayan, Bredhoff & Kaiser, P.L.L.C., Washington, DC, Mark A. Sweet, Law Offices of Mark A. Sweet, LLC, Whitefish Bay, WI, for Plaintiffs.

Eric M. McLeod, Michael P. Screnock, Michael Best & Friedrich LLP, Steven Carl Kilpatrick, Wisconsin Department of Justice, Madison, WI, Joseph Louis Olson, Michael Best & Friedrich LLP, Milwaukee, WI, for Defendants.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

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.¹Plaintiffs, representing seven of Wisconsin's largest public unions, 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.²Instead, 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 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 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 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,52 Fed.Appx. 285, 287(7th Cir.2002)(citingLehnert v. Ferris Faculty Ass'n,500 U.S. 507, 519, 111 S.Ct. 1950, 114 L.Ed.2d 572(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.SeeKeith 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.SeeLigas 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.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...