Via Althouse; an Obama-appointed federal judge, William Conley, issued a ruling that struck down parts of Wisconsin’s Act 10, the law that led miscreant Democrat politicians and miscreant public union employees to abandon their posts in order to throw a childish temper tantrum. The most controversial part of the law, stripping all but pay from any collective bargaining agreements negotiated by non-public safety public employee unions (called general employee unions, or as I will call them, general public employee unions), was left intact. But, the requirements for employee recertification of union representation by the general public employee unions was tossed. Plus, the state must begin automatic of withdrawal of union dues from those employees affected by Act 10 by May 31, 2012 (giving the state time to seek an injunction from the 7th Circuit to maintain the status quo); in other words, the Wisconsin state government is required to fund the general public employee unions’ money laundering operation so that these unions can use the dues, extracted from taxpayers, to fund Democrat campaigns.
I have no doubt the 7th Circuit will issue an injunction so that the state can avoid having to redo its payroll system in order to comply with part of Judge Conley’s order. I don’t see how this ruling can stand on the merits, because it doesn’t appear to have much merit. Click below to see why.
The plaintiffs, the general public employee unions, wanted Act 10 struck down entirely on Equal Protection and First Amendment grounds. For the Equal Protection challenge, the plaintiffs wanted the court to declare that these particular unions were being treated as a “suspect class”, like blacks and homosexuals have been classified in other court cases. To his credit and with regards to whether the state can restrict what can be included for collective bargaining of some public employee unions and not others, Judge Conley said the “rational basis” test applies:
Here, there is no suspect class involved and plaintiffs have failed to present sufficient evidence that exempting public safety employees from the new, expansive restrictions on collective bargaining bears no rational relationship to a legitimate government interest in avoiding strikes of those employees.
But to strike down those sections of Act 10 on Equal Protection grounds, Judge Conley reclassifies general public employee unions as a “suspect class,” even though he doesn’t say so explicitly; he does this while opining on potential First Amendment challenges to the union recertification provisions [italicized emphasis from original, bold emphasis mine]:
Even if not itself a direct violation of plaintiffs’ First Amendment rights, the appearance of a partisan division of the two classes of unions is troubling.
Conley calls the recertification provisions “irrational,” citing a 1986 Ohio Supreme Court case, State ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State Emp’t Relations Board in a notation:
…(finding provision which denied certain Dayton municipal employees collective bargaining rights to be “the very kind of arbitrary legislative enactment that is prohibited by the equal protection guarantees of both the Ohio and United States Constitution”).
The Ohio case is completely unrelated. The state had disallowed police officers at or above the rank of sergeant from joining the union, while requiring lower-ranking officers to do so (in private sector terms, the higher-ranked officers would be considered management, not labor); the Wisconsin case has to do with different unions, although it should be noted that Capitol Police, UW Campus Police, and Fire/Crash Rescue Specialist public employees were classified as general public union employees and not as public safety public employees.
As far as I’m concerned, appearance is not evidence of proof.
On its face, Conley’s dues withholding ruling seems to be on more stable legal (First Amendment) ground. Act 10 does not bar workers from voluntarily sending in dues to their representative general public employee union; it got rid of having the state do so automatically as part of the workers’ paychecks. Conley acknowledges states are not required to withhold dues in their employees’ pay, but only if “it ‘applies to all organizations’ and ‘to all employers'” (citing the penultimate sentence of this notation in Chief Justice Roberts’ majority opinion in Ysursa v. Pocatello Educ. Ass’n, a 6-3 decision that included Justice Ginsburg with the four conservatives and Justice Kennedy). It’s obvious Act 10 does have different classifications of the various public sector unions. But Conley cites the Ysursa notation only in part, missing the last sentence:
If the ban is not enforced evenhandedly, plaintiffs are free to bring an as applied challenge.
Which means a challenge may still fail. The Ysursa notation cites the 8-1 National Endowment for Arts v. Finley 1998 ruling, holding that some laws could be vague but not infringe on the First Amendment.
Where Conley goes wrong is trying to say the law was politically beneficial to some unions [emphasis from original]:
The fact that none of the public employee unions falling into the general category endorsed Walker in the 2010 election and that all of the unions that endorsed Walker fall within the public safety category certainly suggests that unions representing general employees have different viewpoints than those of the unions representing public safety employees. Moreover, Supreme Court jurisprudence and the evidence of record strongly suggests that the exemption of those unions from Act 10’s prohibition on automatic dues deductions enhances the ability of unions representing public safety employees to continue to support this Governor and his party.
While it may be true that all of the public safety public employee unions supporting Walker benefited, it is also true that not all of the public safety public employee unions that benefited from Act 10 supported Walker. So to claim Act 10 was a political “reward” is inherently wrong. As Conley acknowledges earlier:
The only question is whether a state may restrict the collective bargaining rights to one category of public unions while allowing full rights to another category. The answer to that question is surely “yes,” provided the classifications do not involve a suspect class and a rational basis exists for a state’s line drawing.
And, Conley followed that up by saying plaintiffs did not offer evidence that a “suspect class” exists (the first quote above).
The Equal Protection claim is completely without merit, and I doubt it will stand as the case moves forward. The First Amendment claim is stronger, but only on a case-by-case basis, not as a facial challenge to strike down the dues withholding restrictions; this is especially true with the reasoning used by Conley in which he undercuts his own argument.
Cross-posted at Scipio the Metalcon.