The Wisconsin Supreme Court last week vacated a contempt order issued by Dane County Judge Juan Colas that had blocked teachers across the state from voting on whether they wanted to continue to be represented by a union. The ruling came as part of the Court’s review of Judge Colas’ ruling that Act 10 is unconstitutional.
Here are the takeaways.
First, the decision is not formally based on whether or not Act 10 is constitutional. The five justice majority acted on procedural grounds, holding that the contempt order had substantially modified Judge Colas’ judgment after it had been appealed. This, they ruled, he had no power to do.
Second, the sharply worded dissent of the Chief Justice and Justice Bradley misses the mark. The problem with Judge Colas’ contempt order is that it foreclosed the rights of person not before him. His initial order, which did not enjoin the state from conducting recertification elections or foreclose the Act 10 rights of persons not before him, did not do so. In that sense, his initial ruling was substantially modified.
Third, while this decision does not address the constitutionality of Act 10, the unions must be very unhappy with what it forebodes. As a normal matter, the Court votes on cases shortly after oral argument. While that vote may not be final and certainly can change, a court that was about to strike down Act 10 would not likely act in an expedited fashion to allow the recertification elections that it requires go forward.
Fourth, the Wisconsin Employment Relations Commission has now ordered that these recertification elections will go forward. Lester Pines, an attorney for the unions,says he will consider moving for contempt before the Supreme Court. The motion would presumably be brought on behalf o the same unions who obtained the contempt order that has now been vacated. These unions were not parties in the case but face recertification elections this month.
Two things. There is some outrage on the left that these unions were not "heard" by the court because they were not permitted to participate at oral argument. But they did file briefs in the Court of Appeals that were transmitted to the Supreme Court for review. While it is true, as the dissenters point out, that it was unclear why the courts would read them –they were neither parties nor amici (friends of the court permitted to file briefs). But that was equally true when Judge Colas granted their request for a contempt order.
I represent teachers who want those elections to go forward. We also were permitted to file a brief in the Court of Appeals but we did not argue before the Supreme Court. (In fact, we did not even ask because we knew it would be a very unusual request.)
But, should the non-party unions now file a motion for contempt, our clients will seek to intervene to oppose it. We are the mirror image of the unions and have as much right to be beard as they do.
Finally, if it wasn’t before, it should now be clear that there is no "window" to ignore Act 10.