Wis. Supreme Court voids contempt order preventing union elections (UPDATE)

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The Wisconsin Supreme Court ruled 5-2 Thursday to void a Dane County judge’s contempt order that would have prevented recertification elections for public school unions from taking place this year.

Justices Pat Roggensack, Michael Gableman, Patrick Crooks and Annette Ziegler voted in the majority, and Chief Justice Shirley Abrahahmson and Justice Ann Walsh Bradley joined in the dissent.

In their ruling Thursday, the justices argued that Dane County Circuit Judge Juan Colas, by issuing the contempt ruling, had significantly altered the scope of an appeal the state Supreme Court is considering to determine the constitutionality of a 2011 law eliminating the bulk of most public employees’ collective-bargaining rights.

“When the appeal of a circuit court’s prior decision is pending before this court,” the majority wrote in Thursday’s opinion, “the circuit court must take care to avoid actions that may interfere with the pending appeal. Once an appeal has been perfected, the circuit court should not have taken any action that significantly altered its judgment.”

Colas found in a September 2012 ruling that parts of the collective bargaining law, commonly known as Act 10, were not constitutional. It was not until the next year, however, that he ruled that two commissioners on the Wisconsin Employment Relations Commission were in contempt of his previous ruling because they continued to take steps to organize union recertification elections mandated by the law.

In their dissent Thursday, Abrahamson and Bradley said that Colas’ 2012 declaratory judgment, which deemed parts of Act 10 unconstitutional, had the effect of providing injunctive relief. His later ruling finding public officials in contempt for acting in defiance of the declaratory judgment only was a direct consequence of that ruling, they wrote, not an expansion.

“This case is not about whether a Dane County circuit court can bind other circuit courts throughout the state,” the dissent stated. “It is not about the ability of a circuit court to bind nonparties to an action. Rather, this case is about the ability of a circuit court judge to issue a judgment that binds government officials who are parties in an action before the court and the authority of a circuit court judge to enforce its judgment.”

The ruling Thursday still leaves the main question of whether Act 10 is unconstitutional. The court is expected to rule on that matter by this summer, at the latest.

The ruling also leaves open the question of whether public-school unions still will hold recertification elections this year. Wisconsin law sets a deadline of Dec. 1 for the elections and, in a request asking the Supreme Court to overturn Colas’ contempt order, the state Attorney General office had said the contests could not take place this year unless the justices granted a stay by Nov. 4.

In oral arguments before the court Nov. 11, though, Deputy Attorney General Kevin St. John said the contempt order could be perceived as an extenuating circumstance and the elections possibly could, with the Supreme Court’s approval, be postponed to a later date if a stay were granted.

According to Act 10, only certified unions have the right to force an employer to the bargaining table every year. And even then, the law allows them to bargain only over one matter of employment: wage increases indexed to inflation.

The law also sets a high bar for a union to win recertification: It has to get at least 51 percent of the vote from all members, not just those who cast ballots.

The ruling Thursday went beyond granting a stay and completely vacated Colas’ contempt order. The dissent opinion made note of that, stating, “The extreme measures the per curiam has taken to vacate the contempt order suggest it has seen fit to reach its outcome through whatever means necessary, rather than through the cautious and measured deliberation this court traditionally applies when reviewing all cases.”

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