When Act 10 was passed in 2011, it effectively blocked most state employees from collectively bargaining for changes like pay increases. The law made exceptions for most police and firefighters.
In early December, a trial court judge found that parts of the law are unconstitutional. The GOP-led Legislature has challenged the ruling, setting up the case’s likely journey to the state Supreme Court.
The Act 10 case, along with a pending abortion case, could be influential in the April Wisconsin Supreme Court election.
To find out more, WUWM’s Maayan Silver checked in with Bryna Godar, staff attorney at the State Democracy Research Initiative at UW Law School.
What’s the case all about?
Act 10 was signed into law by Republican Gov. Scott Walker. It established that, except for many police officers and firefighters, state employees can’t collectively bargain in Wisconsin, and wages can’t increase by more than the cost of living (inflation rate).
Proponents of Act 10 say it saves the state money and supports balanced budgets. Opponents say it limits workers' ability to advocate for pay and other labor rights.
“Wisconsin has had a really strong history of labor organizations and unions,” says Godar. “And there has always been debate over whether unions are too strong or if it’s costing the state too much money. This really came to a head in Act 10, which removed a lot of collective bargaining rights for a lot of employees."
"If you were around then, you would recall there were days of protests at the Capitol," she says. "Tens of thousands of people turning out. And so this was a major political flashpoint when it was passed. And although I think it has become less top of mind for folks, I think this case is really bringing it back to the forefront for people.”
What’s the latest on Act 10 litigation?
A trial court judge just ruled that Act 10 is unconstitutional, even though past courts have upheld the law. “What’s interesting is this actually is sort of a new claim that’s being brought forward, and the judge found that it was a sufficient reason to overturn it,” says Godar. She says previous cases were brought in federal court under the equal protection clause of the U.S. Constitution, and this case brought an equal protection claim under the Wisconsin Constitution.
The other big difference, says Godar, is that the plaintiffs in this case were not the same plaintiffs who brought the previous cases. “So the Legislature in this case was arguing basically that these claims should have been brought in this prior litigation, and part of the assessment of whether these new claims would be barred is whether the parties are the same as in that prior litigation, and the judge concluded that they were sufficiently different so as not to bar this claim. But I’m sure the Legislature will renew those arguments on appeal.”
What was the trial court’s ruling?
“The court in this case concluded that the way the Legislature had drawn the distinctions was unconstitutional under the state Constitution,” says Godar.
“[The lawsuit] focused on how the group of public safety employees had been defined. And so the court said it’s fine for the Legislature to distinguish between public safety employees like police officers and firefighters and general employees when it’s making these collective bargaining distinctions, and it’s okay to give the public safety employees greater collective bargaining rights because of sort of the heightened concerns about labor unrest in those professions and implications that that might have for the state and the safety of people in the state.”
But what the Legislature can’t do, the court concluded, is draw the lines around that public safety group in a way that is irrational or unreasonable, says Godar. “And so what the court really looked at was the fact that that public safety employee group included people like municipal police officers, municipal firefighters, deputy sheriffs, state traffic patrol and state motor vehicle inspectors, but didn’t include categories like Capitol Police, UW police and conservation wardens.”
Godar says the court really searched for a reasonable rationale for including the groups that were included and excluding those other groups.
“And it basically said that there wasn’t one. And so because it couldn’t find a reasonable rationale for how those lines had been drawn, it concluded that it just had to strike down that distinction entirely. And the result of that was to restore general public employees to the same collective bargaining rights as public safety employees had retained under the law.”
If the trial court’s decision stands in the higher courts, couldn’t the Legislature just rewrite the categories to include public safety employees they had excluded?
“It could. So if the Legislature wanted to, it could go back and it could repass Act 10, but do it in a way that has a rational basis for how it draws the public safety employee category. But that would have to go through the same sort of legislative process as any legislation. It would be subject to the governor’s veto, and it would have to sort of survive that whole process over again.”
In that case, it would also be relevant who wins the race for Wisconsin governor in 2026.
What’s next in the courts?
The trial court’s decision overturning Act 10 is being appealed by the Legislature, and it’s currently in the Wisconsin Court of Appeals.
“The Legislature is almost certainly going to ask for a stay of the lower court’s decision, which would mean that if that’s granted, there would be sort of a pause on this ruling, so Act 10 would fully stay in effect while litigation is pending, if that happens,” Godar says.
From there, the plaintiffs in this case, who are challenging Act 10, could ask the Wisconsin Supreme Court to overturn that stay, and then could also ask the Wisconsin Supreme Court to allow it to bypass the Court of Appeals and take up the case directly.
Do you expect the case to be decided before the April 1 election?
“I think it's pretty unlikely, even if the Wisconsin Supreme Court grants petition for bypass, if that's filed," Godar says. "I think it's pretty unlikely that the Wisconsin Supreme Court would resolve this case before April. It is possible that they could resolve it before August, which would be when the next justice, who is elected in April, would join the bench. But I think April is pretty tight for turning this around, even if they skip the Court of Appeals.”
What do we know about the two current leading candidates’ positions on that issue?
The candidates in the April Wisconsin Supreme Court race are Judge Susan Crawford, who is backed by Democrats, and former Attorney General Brad Schimel, who is backed by Republicans.
“Both candidates have previously been involved in issues related to Act 10,” says Godar. “Because they were publicly engaged individuals, they sort of have a bit of a track record before becoming judges. So Crawford, when she was a private attorney, was on a team of attorneys in a case in state court that sought to overturn Act 10. And Judge Schimel, when he was attorney general, said that he would defend Act 10 and took a stance that its restrictions shouldn’t apply to police and firefighter unions. His campaign has already put out some posts criticizing the decision in this Act 10 case and criticizing Judge Crawford’s role in seeking to overturn Act 10 previously. So, I think this will become a pretty salient campaign issue for both of them.”
What kind of attention might this case receive from voters?
“I think [both the abortion law case before the state supreme court, and the Act 10 case] will definitely be salient issues for voters, and it just depends on a voters’ priorities, whether they focus on one another more,” she says.
“Something that's notable or interesting, too, is that [the Act 10 case] has the potential to draw in both business and labor organizations in a way that might not have been the case otherwise, and so that could continue to drive up spending in this race like we saw in 2023.”
What other big and politically mobilizing or impactful cases are expected to come before the court in 2025?
“So I think that abortion and Act 10 will continue to be the main ones. I don’t know that any other issues are going to be as big as those two,” Godar says. “But what we are still seeing are some major cases at the state Supreme Court related to the separation of powers, including the governor’s partial veto power and the role of legislative committees, like the Joint Committee on Finance, in handling funding or spending decisions. We’re continuing to see some fights over the separation of powers play out as one major sort of category, but I think that’s something that is less present day-to-day for a lot of voters and is less sort of accessible as an issue.”
The court will continue to weigh in on cases during the election season that are working their way through the appeals courts and up to the Wisconsin Supreme Court.
“I think the most prominent of those is probably the Disability Rights Wisconsin case, which is seeking access to electronic ballots for people with certain disabilities who can’t vote absentee without somebody assisting them right now, and they’re seeking access to electronic absentee ballots to allow for them to be able to cast secret absentee ballots.”
Editor's note: WUWM employees are state employees impacted by Act 10, as WUWM's license is held by the UW Board of Regents and the station is operated by the University of Wisconsin-Milwaukee.
