Late yesterday afternoon as I was boarding a flight from southwest Florida back to Milwaukee, my cell phone started to chime.  The Court of Appeals had declined to grant a stay of Dane County Circuit Court Judge Juan Colas’ decision holding Act 10 constitutional. As I tried to read the decision before the flight attendants consigned me to cyber Limbo, it struck me that there are three things to keep in mind about the decision.

The decision is about the stay and not about the merits.  As I have written, Judge Colas’ decision suffers from some fatal flaws.  One of the factors to be considered in granting a stay pending appeal is the likelihood that a lower court decision will be reversed. Although the Court of Appeals ultimately declined to grant the stay, it assumed that this factor cut in favor of a stay, i.e., it recognized the legal presumption that a statute is constitutional. 

Opponents of Act 10 might be inclined to find encouragement in the Court of Appeals’ statement that this was a "middle case" – neither a clear winner nor clear loser for the state. I wouldn’t be so sure.  The Court said only that it was unprepared to say that this was a case in which the state was nearly certain to win. Indeed, it would be unusual for a panel of the Court of Appeals ever to say that a decision of a lower court was nearly certain to be reversed without briefing on the merits. While my own assessment is that the likelihood that Judge Colas’ decision regarding limitations on the scope of collective bargaining will be reversed is quite high, I don’t think one can read much into the Court of Appeals’ unwillingness to say so at this point in the proceedings.

Whether or not to grant a stay requires balancing a number of competing factors. Because of the procedural posture of this case, the Court of Appeals adopted a deferential approach to Judge Colas’ own refusal to grant a stay. That decision doesn’t tell us much about what will happen as the case proceeds. Under standard rules of appellate review, Judge Colas’ decision on the merits, i.e., the question of unconstitutionality, is entitled to no deference.

The decision confirms that Judge Colas’ decision is not binding on nonparties. One of the problems faced by local units of government is that they don’t know what to do as contracts come up for renewal or unions demand that contracts negotiated in accordance with Act 10’s limitations be reopened. If Judge Colas is wrong, then any contracts including negotiated terms that are not permitted by Act 10 will be unlawful.

On the other hand, if Act 10 is ultimately found to be unconstitutional, then refusing to bargain over terms that it prohibits could lead to allegations that the municipalities have failed to bargain in good faith. 

In response to the state’s argument that a stay was needed to resolve this dilemma, the Court of Appeals said, essentially, that a stay wouldn’t help. Municipal unions – at least those who aren’t parties to the Act 10 litigation – would not be bound by it. It might have added that municipalities – and taxpayers – might not be as well. Although the Court speculated that some courts faced with such a case might choose to follow Judge Colas’ ruling, others might not.

The decision confirms that there is no "window of opportunity" to violate Act 10. The Court of Appeals confirmed the long standing rule that a decision of a circuit court has no precedential value. It noted that there was risk in either negotiating a contract inconsistent with Act 10 or in refusing to bargain over terms prohibited by Act 10. The former is true because, if Judge Colas is reversed, his decision becomes a nullity. It did not "suspend" the operation of Act 10 or place it on hold. Municipal employers who negotiate agreements that are not compliant with Act 10 do so at their own risk.

So what’s next? At some point, either the Court of Appeals or one of the parties – most likely the state – may ask the state Supreme Court to take the case directly. It is not at all clear that it will. While this case is pending, other cases may be filed seeking to "apply" or avoid Judge Colas’ decision. Ultimately, in my view, Act 10 will be upheld by the Supreme Court.

But, for now, we’re going to see a lot more lawyering. 

Rick Esenberg is the founder and current President and General Counsel of the Wisconsin Institute for Law & Liberty.