A Wisconsin law requiring certain public worker unions to vote annually on whether they wish to remain in existence is constitutional, a lawyer for the state told a federal appellate court.
Special Counsel Joseph Olson today asked the Chicago-based three-judge panel to reverse U.S. District Judge William Conley’s March 30 ruling that the recertification law violates U.S. constitutional guarantees of equal protection under the law by classifying some unions as engaged in “public safety” and exempting them from compliance.
While he upheld the bulk of Governor Scott Walker’s 2011 legislation, Conley also struck down a provision barring the voluntary deduction of union dues from “general employee” paychecks.
“Now they have an annual election where they’re allowed to voice their pleasure or displeasure,” with their collective bargaining agent, Olson told the judges.
Known as Act 10, the legislation required unions to poll their members yearly on whether they wanted to be in the organization. To continue, the union would have needed positive votes from a majority of all its members, not just those voting.
The Wisconsin Education Association Council last year filed suit at the federal courthouse in Madison, the state’s capital city, seeking to overturn the law, which it said was politically motivated and discriminatory.
The legislation sparked protests outside the state’s Capitol and a recall election in June in which Walker defeated Milwaukee Mayor Tom Barrett, his Democratic challenger.
A Wisconsin state court judge this month declared the measure unconstitutional. The state is appealing that ruling.
Hearing today’s argument was U.S. Circuit Judge William J. Bauer, who was first appointed to the federal bench by President Richard M. Nixon in 1971 and elevated to the appellate court by Nixon’s Republican successor, Gerald R. Ford, in 1974.
Joining Bauer on today’s panel was Judge Joel M. Flaum, whom Ford appointed to the federal district court in Chicago in 1974 and whom Republican President Ronald Reagan named to the appeals court in 1983. The third member of the panel was U.S. Circuit Judge David F. Hamilton, selected by Democrat Bill Clinton in 1994 for the federal district court in Indiana. President Barack Obama, a Democrat, named Hamilton to the appeals court in 2009.
All of the public safety unions qualifying for the exemption had supported Walker in his 2010 gubernatorial campaign while none of the general employee unions to which the rule applied had backed him, Conley said in his March ruling.
Olson today called that finding unsubstantiated.
“The court should be leery to ascribe political animus,” the state’s lawyer said. Olson is an attorney in the Madison law office of Michael Best & Friedrich LLP.
Wisconsin Education Association attorney Leon Dayan disagreed, saying the legislation contained a “gerrymandered” definition of public safety employee to protect those who backed Walker’s election in 2010.
“Its a political payback distinction and not a substantive policy distinction,” said Dayan, a lawyer with the Washington firm of Bredhoff & Kaiser PLLC.
Dayan said the lower court halted enforcement of the recertification law and is allowing automatic dues deductions to continue only for those unions that weren’t decertified while the measure was in force.
The judges said they’d take the attorneys’ arguments under advisement and issued no decision today.
The case is Wisconsin Education Association Council v. Walker, 12-2011, U.S. Court of Appeals for the Seventh Circuit (Chicago).
--Editors: Peter Blumberg, Andrew Dunn
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