Commissioners debating if elections can proceed following high court decision

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State commissioners plan to decide Monday if Thursday’s Wisconsin Supreme Court decision to overturn a lower court’s contempt order will allow recertification elections for public-school unions to move forward this year, as previously planned.

The Wisconsin Employment Relations Commission announced those plans Friday, a day after the state’s high court decided 5-2 to vacate a Dane County judge’s October ruling that two commissioners at the agency were in contempt of a decision he had made the previous year. That previous decision found that parts of Wisconsin’s controversial law limiting public employees’ collective-bargaining rights were unconstitutional.

The employment relations commission is charged with resolving labor disputes. Dane County Circuit Judge Juan Colas issued a contempt order this fall because two commissioners, James Scott and Rodney Pasch, were preparing to organize the recertification elections that are required by the collective-bargaining law, commonly known as Act 10. Colas found the commissioners in contempt because he previously had ruled that parts of Act 10 were unconstitutional.

The recertification elections, which state law requires occur by Dec. 1, are for about 400 public-school unions that were not party to the ongoing challenge of Act 10’s constitutionality, which is pending before the state Supreme Court.

Peter Davis, general counsel for the commission, said the big question Friday was whether the high court’s Thursday decision makes it “legally permissible for them to proceed” with organizing the elections.

“They will reach their conclusion from their assessment of the court’s opinion yesterday,” he said, “and their own consideration of the legal issues.”

Davis said the commission’s administrative rules suggest the elections can come to a conclusion after the Dec. 1 deadline as long as the process used to put them in motion starts before that date.

“If the balloting is completed on or before Dec. 1,” he said, “from our perspective, the election is still a valid one. Obviously, somewhere down the line, that may be subject to challenge.”

During Nov. 11 oral arguments before the state Supreme Court about the constitutionality of Act 10, Wisconsin’s Deputy Attorney General Kevin St. John argued that Colas’ 2012 declaration only applied to the two organizations that had brought forward the latest challenge of the law: Madison Teachers Inc. and Public Employees Local 61 of the AFL-CIO.

St. John said Colas’ decision a year later to issue a contempt order barring recertification elections for all other public-school unions inappropriately expanded the scope of the appeal the high court is now considering.

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. Raises of a greater amount would have to be approved by voters in a statewide referendum.

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.

In vacating Colas’ contempt order Thursday, the justices who wrote the majority opinion essentially adopted St. John’s line of argument.

“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.”

The justices split along lines often seen when the court debates highly political issues. The justices commonly thought to be conservative – David Prosser, Pat Roggensack, Michael Gableman and Annette Ziegler – formed the majority along with Patrick Crooks, who is perceived to be a swing vote. Writing the dissent were the two justices widely believed to be the most liberal: Chief Justice Shirley Abrahahmson and Justice Ann Walsh Bradley.

In their dissent, Abrahamson and Bradley wrote that Colas’ 2012 declaratory judgment finding parts of Act 10 unconstitutional had the effect of providing injunctive relief. His later ruling deeming public officials in contempt for acting in defiance of the declaratory judgment 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.

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