The state’s attorney general said Friday he will not ask the Supreme Court to put a temporary hold on a ruling that invalidated parts of a law curbing public employees’ collective bargaining rights.
Last week an appeals court declined to temporarily put on hold, or stay, a previous ruling that deemed parts of the law unconstitutional, saying the state would have to wait for its decision on whether the law is constitutional. Attorney General J.B. Van Hollen could have asked the Supreme Court to stay the ruling after the appeals court’s announcement, but he decided not to.
In September, Dane County Circuit Court Judge Juan Colas ruled parts of the collective bargaining law were unconstitutional. Van Hollen appealed that decision, but until the appeals court decides on whether it agrees with Colas’ ruling, that decision will remain.
Van Hollen said he and his office asked for a stay of Colas’ decision because they were concerned municipal employees and others would think it allowed them to not follow the law.
“While the Court of Appeals denied our motion for a stay, it also was very clear that Judge Colas’ order does not have statewide application and does not apply to any nonparties,” Van Hollen said.
However, attorney Lester Pines, who is representing Madison Teachers Inc. and others who brought suit against the law, said in a statement the court order allows municipal employees to “play it safe” by applying the law according to Colas’ decision.
He said unions could negotiate contracts to protect their interests even if courts reinstate the challenged provisions of the collective bargaining law.
Rick Esenberg, Wisconsin Institute for Law and Liberty president and general counsel, said one of the reasons Van Hollen asked for a stay in the case before the appeals court was because of the resulting confusion from Colas’ ruling, such as the extent of the ruling and what it could mean for municipalities.
Esenberg said one of the reasons the Court of Appeals cited for not issuing a stay was because they could not resolve this confusion. However, he said Colas’ decision does not create a window of opportunity for unions to negotiate with the state.
“No matter what you do as a union or a municipality, you take a risk,” Esenberg said. “If you’re a municipality and decide you’re not going to negotiate and comply with Act 10, a union could sue you for not negotiating in good faith. If you decide to not comply with Act 10, a union employee or taxpayer could sue you over the contract.”
However, Pines said the Wisconsin Employment Relations Commission, the state agency involved with enforcing the collective bargaining law, is a party in the case. Therefore, the court’s decision binds them and requires them to treat the challenged provisions of the law as null and void, Pines said.
“Because they have been told that such provisions are not laws and have no effect, the commissioners may not enforce or administer those provisions in any matter that comes before them,” Pines said. “If they do, we will bring them back to court to be held in contempt of court for ignoring the circuit court’s decision.”
Peter Davis, WERC general counsel, said in an email to The Badger Herald that as of Friday, WERC had not reached a conclusion as to the impact of Colas’ decision on its functions.
Esenberg said for Pines to hold WERC in contempt, he would have to receive an order from Colas concerning the matter. He said Pines may be able to bring suit if he could litigate the case in time.
However, Esenberg said litigation would not eliminate the risk a municipality would take to negotiate, and would then have either the Court of Appeals or the Supreme Court uphold the challenged provisions of the law. He said this would mean the contract would have been done illegally.
