Monday, September 17, 2012

Madison Teachers, Inc. v. Scott Walker

The Reader(s)™ have spoken—they want me to opine on the recent Dane County Circuit Court case striking down major provisions of Scott Walker's public-union busting law, Act 10. These people are nuts, but ... well, okay.

The Court holds major provisions of Act 10 unconstitutional because, among other things, they violate the plaintiffs' rights of free speech, association, and equal protection under the Wisconsin Constitution. The essential holding is that, although there is no constitutional right to collective bargaining, Act 10 is unconstitutional because it imposes unconstitutional burdens on the union members' freedom to associate by penalizing them for joining unions. (The equal protection holding essentially rests on the prior holding that the act infringes the right to associate freely.) Here is an example of the Court's analysis as I understand it:
  1. There is no constitutional right to collective bargaining, but there is a constitutional right to associate freely.
  2. This right to associate includes the right to join a group such as a union.
  3. Under Act 10, Wisconsin prevents municipalities and counties from negotiating with unions over anything except pay increases up to the cost of living adjustment. More than a COLA requires a referendum.
  4. Municipalities may, however, negotiate with individual non-union workers over such terms.
  5. For example, a municipality could give a raise in excess of COLA to an individual non-union teacher without a referendum.
  6. This places a burden on the freedom of association because it penalizes employees who choose to associate and bargain in the form of labor unions.
This argument has a facial appeal, but I believe it is built on error. The error is the notion that by exercising the associative right to join a union the individual employee necessarily forfeits the right to bargain individually. There is no basis I'm aware of for believing that is so. In other words, plaintiff Peggy Coyne can freely associate by joining a union of follow teachers and still negotiate her own salary. 

The Act does not penalize people for joining a union; it penalizes them for bargaining collectively. So the law does not (as the Court incorrectly claims) "single out and encumber the rights of those employees who choose union membership solely because of that association." Rather, it penalizes those employees who bargain collectively. And since the Court agrees that there is no right to collective bargaining, its reasoning ultimately falls apart.

A case that the Court cites but does not come to grips with—Hanover Twp Fed'n of Teachers v. Hanover—makes clear the relevant distinction that the Court ignores:
[P]rotected “union activities” include advocacy and persuasion in organizing the union and enlarging its membership, and also in the expression of its views to employees and to the public. For that reason, the State may not broadly condemn all union activities or discharge its employees simply because they join a union or participate in its activities. It does not follow, however, that all activities of a union or its members are constitutionally protected.
Thus, the economic activities of a group of persons (whether representing labor or management) who associate together to achieve a common purpose are not protected by the First Amendment. Such activities may be either prohibited or protected as a matter of legislative policy. 
This is a federal case dealing with the First Amendment, but there's no indication that the Wisconsin protections of free association and free speech are any different.

I have other issues with the opinion, but I think this is a fundamental error. What do you think, Mr. Gillette? Mr. Mothershead? Sean? Nick? Astrophel?

UPDATE: The only other real analysis of the decision I've found is this blog post by Marquette law professor Edward Fallone. It appears to me that Professor Fallone is not really defending the opinion per se but rather is putting forth an alternate theory to get the same result. Be sure to read the comments, particularly the comment by Tom Kamenick which rather forcefully (and convincingly?) attacks the opinion.


  1. I think this is either great customer service or fantastic kowtowing.

  2. Fair point, the two things are not opposites.


Comments on posts older than 30 days are moderated because almost all of those comments are spam.