On Monday, December 2, 2024, a ruling from Dane County Circuit Court Judge Jacob B. Frost modified numerous statutory provisions related to Act 10, the controversial 2011 legislation that significantly curtailed many Wisconsin public employees’ collective bargaining rights. This ruling occurred in the context of a lawsuit filed by several Wisconsin public employee unions asserting that Act 10 violates the Equal Protection Clause of the Wisconsin Constitution by treating public safety employees and general public employees differently. Having previously decided in a July 3, 2024, ruling that Act 10 violates the Wisconsin Constitution as the plaintiffs allege, Judge Frost’s new decision specifies those aspects of the Act 10 statutory framework (including some components of a subsequent related law, 2015 Wisconsin Act 55) that he believes must be stricken as unconstitutional.
In declaring portions of Act 10 unconstitutional, Judge Frost held that the defendants (including the Wisconsin Employment Relations Commission and the Wisconsin Division of Personnel Management) and intervening party (the Wisconsin State Legislature) failed to establish a rational basis for the law’s distinction between public safety and other public employees. His December 2, 2024, decision thus purports to eliminate statutory provisions related to “the unconstitutional creation of the public safety group” in the interest of providing general public employees with the same rights as those Act 10 reserved for public safety employees, including the right to collectively bargain over wages, hours and conditions of employment, the right to access the interest arbitration process, and the right to maintain a union without the need for annual recertification. However, Judge Frost’s decision creates uncertainty by leaving intact/unaddressed many other statutory provisions that were altered by the passage of Act 10 and/or subsequent legislative action, including (but not limited to) those related to health insurance, WRS contributions, and grievance procedures.
Notwithstanding the significant media and public attention that Judge Frost’s recent decision has received, this latest legal battle over Act 10’s fate is far from over. The Wisconsin Legislature has already appealed the decision and plans to seek a stay, which would place any of Judge Frost’s statutory modifications on hold pending the outcome of an appeals process that is very likely to conclude in the Wisconsin Supreme Court. Further, no final order has been issued in the Dane County Circuit Court case, and even were such an order issued, the scope of Judge Frost’s ruling remains unclear. For these reasons, we strongly urge public employers to maintain the status quo pending further developments. Public employers should not agree to expand the scope of bargaining with any public employee labor organizations or otherwise act in a manner that suggests Judge Frost’s ruling is settled law in Dane County or anywhere else in Wisconsin.
If you have questions about how your organization should proceed in consideration of these developments, please contact your Buelow Vetter attorney.
