Attorney tells Wis. Supreme Court union plan is unconstitutionally burdensome

MADISON, Wis. — Labor attorneys pushed the state Supreme Court on Monday to strike down portions of Republican Gov. Scott Walker's public union restrictions, arguing the prohibitions are designed to force school district and municipal workers to abandon their unions.

The court's decision could bring to an end one of the last unresolved legal challenges to the contentious restrictions that stripped almost all public workers of nearly all their union rights. Union supporters face an uphill fight, though, because conservative justices control the court.

Lester Pines, an attorney for a Madison teachers union, pressed ahead during oral arguments Monday, telling the justices that Walker's restrictions penalize local public workers who exercise their constitutional right to freely associate with a union. Their organizations can't collectively bargain for anything beyond base wage increases based on inflation or automatically withdraw dues from members' paychecks and must hold annual elections to see if their members want them to continue representing them, Pines said. The measures are designed to be so onerous that people simply quit their unions, he said.

"This isn't benign," Pines said. "These provisions are designed to make it impossible for people to exercise their associative rights."

Attorney General J.B. Van Hollen, a Republican, appeared in person to argue for the Walker administration. He said constitutionality isn't an issue because collective bargaining is a benefit granted through state statutes. He maintained union members are still free to associate with one another and ask their employers for higher wages and other benefits. The restrictions simply mean they can't force their employers to listen.

"It is not a constitutional violation to limit the scope of collective bargaining," Van Hollen told the justices.

The case centers on a lawsuit a Madison teachers union and a Milwaukee public workers union filed in 2011 challenging the restrictions. Dane County Circuit Judge Juan Colas ruled last year the restrictions unfairly burden school district and municipal union members by infringing on their constitutional rights to free speech, association and equal protection.

Six unions not involved in the case asked Colas to find WERC in contempt of court. Colas granted the request in October, declaring his ruling meant no one could enforce the restrictions against any local public union. WERC stopped preparing for the elections pending the Supreme Court ruling.

State attorneys also tried to persuade the justices Monday to stay the contempt finding, arguing delaying the certification elections creates more uncertainty. Tamara Packard, another attorney for the Madison teachers, countered Colas properly issued the order; without it, she said, unions would have had to spend resources campaigning for unconstitutional elections.

The justices grilled both sides' attorneys for hours.

The conservative bloc appeared skeptical about the contempt order; Justice Michael Gableman mused WERC might have been prudent to continue election preparations given all the legal questions surrounding the restrictions and pointed out the state would have to spend resources setting up the elections as well so it's unclear which side would suffer greater harm.

Chief Justice Shirley Abrahamson, one of the court's two liberal-leaning justices, questioned whether granting the stay would mean unions that haven't filed notice with WERC that want to hold elections in November would be immediately de-certified.

It's unclear when the court might rule on merits of the case or the stay request. The justices face no deadline for issuing a decision.