By Collin Roth
Not 24 hours after the Wisconsin Supreme Court handed down its speedy decision upholding the Budget Repair Bill, a coalition of Wisconsin unions announced their intent to file a lawsuit in federal court on Wednesday. In a Wisconsin AFL-CIO press release, President Phil Nuenfeldt charged that “not only have Scott Walker and his deep-pocketed corporate allies sought to silence the voices of Wisconsin workers, they have also violated those workers constitutional rights.”
The unions allege the changes made to collective bargaining rights violate the First and Fourteenth Amendments of the U.S. Constitution “by stripping away basic rights to bargain, organize and associate for the purpose of engaging in union activity” as well as “discriminating among classes of public employees.”
The decision to file a lawsuit in federal court is hardly surprising. In fact, a secret memo obtained by the Wisconsin Club For Growth outlined the legal basis for this strategy back in mid-February.
We could file the case in either federal or state court. We think federal court may be preferred. We are concerned that if we file in state court, the case will eventually be appealed to the Wisconsin Supreme Court which may be biased in favor of the Governor.
In lieu of Tuesday evening’s Supreme Court decision, the union rationale for filing in federal court appears prescient. And as for the expectation that federal court might be a better bet for a union challenge, a federal lawsuit would begin in U.S. District Court of Western Wisconsin, presided over by former Madison lawyer and 2009 Obama appointee Chief Judge William C. Conley.
By exempting firefighters and police from the collective bargaining provisions, the lawsuit contends that the Bill violates the Equal Protection Clause. Furthermore, the unions allege a First Amendment violation arguing that the changes to collective bargaining are a punitive measure meant to punish public employee unions opposition to Governor Walker during the November 2010 election. The memo explains:
We believe we have strong arguments for challenging the Budget Repair Bill. First, there is the Equal Protection Clause violation because the Bill creates a classification of three preferred unions without a rational relationship to the articulated purpose of addressing the budget shortfall. While the rational basis test is a fairly easy standard to overcome, we believe the Bill will not be able to show a rational basis. Second, there is a First Amendment retaliation claim- that the Bill is motivated by a desire to retaliate against the public employee unions who spoke out against electing Governor Walker. This speech is constitutionally protected.
As is easily deduced from these excerpts, union leadership anticipated challenging the Budget Repair Bill (now Act 10) in federal court all along. When the opportunity presented itself to challenge the Bill on the basis of violating the Open Meetings Law, union leadership held off on their strategy until the Wisconsin Supreme Court rendered a decision in the case. With a decision in hand, the unions will now file a federal lawsuit as was always the plan.
Plaintiffs in the lawsuit include the American Federation of State, County and Municipal Employees (AFSCME) Council 24, AFSCME Council 40, AFSCME Council 48, the American Federation of Teachers (AFT), the Wisconsin Education Association Council (WEAC), the Wisconsin State Employees Union, The Wisconsin State AFL-CIO and the Service Employees International Union Health Care Wisconsin (SEIU).