Appeals court tosses state furlough lawsuit (UPDATE)

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MADISON, Wis. (AP) – A state appeals court dismissed a lawsuit Thursday demanding state workers get paid sabbatical days to offset mandatory furloughs ordered by then-Gov. Jim Doyle in 2009.

Doyle, a Democrat, ordered all state employees to take 16 furlough days from 2009-2011 to help balance the state’s $6.6 billion deficit. The assistant prosecutors union refused to take all 16 days, though, saying their contract allowed only 10 temporary layoff days during the two years.

The Wisconsin State Employees Union asked the state Office of Employment Relations to restore six furlough days for its members, arguing they were entitled to the same treatment, but the office refused. WSEU filed a lawsuit against the state in August 2011 demanding a judge declare all unions should be treated equally on furloughs and return six furlough days in the form of paid sabbatical days for its members.

State attorneys moved to dismiss the lawsuit, but a Dane County judge ruled last year the case could proceed.

State attorneys appealed. They argued the state’s sovereign immunity, a legal construct that prevents a judge from having any jurisdiction over the state unless the Legislature consents, bars the case.

The union countered sovereign immunity doesn’t apply because it wanted a declaratory judgment that all unions should be treated equally. Case law permits litigants to bring such declaratory actions against a state agency accused of acting outside of its authority, the union argued.

The 4th District Court of Appeals sided with the state on Thursday and dismissed the lawsuit after finding sovereign immunity does apply. The declaratory judgment exception applies only when litigants are seeking future changes; the union clearly wants compensation for an alleged past wrong, the court said.

The union’s attorney, Peg Lautenschlager, didn’t immediately return a telephone message seeking comment.