With the 7th Circuit Court of Appeals upholding Act 10 in its entirety, only a Dane County ruling is holding Act 10 back now. Judge Colas’ ruling prompted public sector unions across the state to begin demanding local governments negotiate wages, benefits, and even pay back “lost” wages. Despite the Colas decision not likely holding precedent outside of Dane County, pubic sector unions are trying to rip off the taxpayers once again.

On October 12, 2012, Dane County Circuit Judge Juan Colas ruled that Act 10 violated the First Amendment and equal protection rights of certain public sector union workers. In the confusion of determining the impact of that ruling, many unions around the state began making demands on local governments. Seeking certainty that the Colas ruling did not apply outside of Dane County, Phillips Borowski, S.C. filed an Amicus Curiae (friend of the court) brief on behalf of many county governments, explaining the massive negative consequences on local government should the Colas decision have statewide effect.  One county board chairman predicted it would lead to “mass layoffs.” The counties also sought administrative relief for clarity that the Colas ruling is non-binding outside of Dane County.

On October 25, the Wisconsin Attorney General appealed the Colas decision to the Fourth District Court of Appeals. Following briefings on the issues, the unions were dealt a setback when the Appeals Court requested further briefing and noted that multiple cases cited by the union did not say what the unions claimed they said.

Unions jumped the gun in relying on the Colas decision to make ridiculous demands outside of Dane County. Wisconsin law precludes circuit court decisions from having the influence the unions are arguing. Raasch v. City of Milwaukee says a circuit court decision is “never precedential” (emphasis in original). The risk of varying results from lower courts could create mass confusion as to the law, so it makes sense that there needs to be an appellate review before rulings have precedence outside that county.

Regardless, public sector unions have been making inconsistent and conflicting demands of local government across the state.  In some cases, the demands were made from unions that were not recertified following the passage of Act 10 and, as a result may not even have legal standing to demand bargaining. The demands included: opening all matters in the expired agreements, negotiation of “wage rates, pensions, health and welfare, vacations,” etc, and retro active wages and benefits “lost” since Act 10 was passed until now  If Colas’ ruling would be applied to mean local governments must return employees to the status quo prior to Act 10, savings generated by Act 10 would be lost.

The John K. MacIver Institute reported that Act 10 has saved Wisconsin taxpayers more than $2 Billion. Think about the consequences of what would happen should the Colas ruling be applied statewide. The $2 Billion savings would turn into a $2 Billion Liability, plus more if back pay for tens of thousands of workers is added.  The tools of Act 10 were meant to offset the decrease in Shared Revenue caused by Gov. Jim Doyle’s legacy: a $3.6 Billion Deficit. However, the unions’ lawsuit would only address Act 10 and not Shared Revenue. So municipalities would be forced to bear tremendous costs. Their borrowing would be limited.  They can only raise taxes so much because the property tax ceiling is still in place.  Municipalities would be forced into significant cuts to service and massive layoffs.  Moody’s credit rating service already projected a negative outlook on Wisconsin local governments credit, should the Wisconsin Supreme Court uphold the ruling.

Do the public sector unions care about the consequences of their legal positions? It appears not.  They are too concerned with waging a legal battle with Gov. Scott Walker and trying to recoup lost union dues that feed their political operations through required dues. As a result of Act 10, AFSCME lost 54% of its dues paying members, AFT lost 35%, and WEAC laid off 40% of its staff due to lack of membership. 

Unions are addicted to getting sweetheart deals and extravagant benefits from the taxpayers.  Their legal positions in the Act 10 litigation reveal their hunger for the good old days when they had their way. They’d like to flip $2 Billion of taxpayer savings into a $2 Billion liability on the backs on the hardworking taxpayers. The unions’ last chance is that they find more activist judges willing to buy their weak arguments.  Let’s hope judicial restraint wins the day.

Matt Batzel, a Wisconsin Attorney, is the Wisconsin Executive Director for American Majority Action.