Kenosha Court: Act 10 Still Applies Statewide, Despite Colas Ruling

The Wisconsin Institute for Law & Liberty has repeatedly advised municipalities and school boards around the state the that the decision of a Dane County judge declaring Act 10 be unconstitutional does not create a “window” for others to enter into collective bargaining agreements that violate the law.  Act 10 remains the law in Wisconsin, except for the parties to the Dane County case.  Yesterday’s decision by the Kenosha Circuit Court in Lacroix v. Kenosha Unified School District supports that position.  As Judge David M. Bastianelli noted, Act 10 is presumed to be “out there, applicable, and constitutional.”

The Wisconsin Institute for Law & Liberty (“WILL”) and the National Right to Work Legal Defense Foundationasked the Kenosha County Circuit Court to stop the immediate implementation of the recently approved collective bargaining agreement (CBA) between Kenosha Unified School District and the Kenosha Education Association (KEA).  We asked the judge to issue an injunction now rather than waiting for completion of the case.

WILL argued that an injunction on the CBA was necessary to prevent harm to taxpayers and teachers.  The CBA requires an illegal bonus payment of $1.65 million to district teachers.  Teachers’ First Amendment rights are also at risk; they are being forced to associate with an organization against their will (via so called “fair share” payments) and abide by a contract that they did not consent to.

After a 6-hour hearing, Judge David M. Bastianelli denied our request, but made several rulings that bode well for our chances of success in the rest of the lawsuit.  First, the judge denied motions to dismiss filed by the District and KEA.  In doing so, the judge found that our clients (a Kenosha teacher and a Kenosha taxpayer) did not have to follow notice of claim procedures and wait over 120 days before filing this suit seeking declaratory and injunctive relief against the District, a local unit of government.  The judge also found that the plaintiffs had standing to bring the claim – meaning they had been or would be injured by the allegedly unlawful contract.

Then, the judge addressed the question of whether Dane County Circuit Court Judge Juan Colás’ earlier decision in Madison Teachers v. Walker declaring Act 10 unlawful has statewide effect, preventing local units of government from complying with Act 10 or persons in the position of WILL’s clients from asserting their Act 10 rights.  The court ruled that it does not, finding that WILL had demonstrated a reasonable probability of success on the merits of their claim that the collective bargaining agreement was illegal. The judge said that Act 10 was “out there, applicable, and constitutional” as to the parties in the Kenosha lawsuit.

But the judge denied the injunction request, finding that any of the potential harms that the plaintiffs would suffer if the contract were enforced could be remedied if they later won their case.  Upon concluding his ruling, however, Judge David Bastianelli admonished the district saying that it “would have been better” to wait until the state supreme court had issued a final ruling on Act 10.

A hearing and decision on whether the Kenosha CBA should be declared null and void will come at a later date.

Explains Rick Esenberg, President and General Counsel of WILL, “We appreciate the court’s willingness to hear us on an expedited basis.  Although we respectfully disagree with the decision not to grant a preliminary injunction, we are confident that we will prevail in the end.  The judge did not, as has been erroneously reported in the local press, “uphold” the collective bargaining agreement.  To the contrary, he ruled that there was a reasonable probability that it would be ultimately declared void.”

The KUSD remains in a difficult position.  “The KUSD argued that, if the contract is held to be illegal and the $1.65 million dollars in payment are improper, it will simply be able to get them back by deducting them from teachers’ paychecks.  For the sake of Kenosha taxpayers, let’s hope that’s right,” Esenberg said.

The judge put a halt to his ruling for one week, prohibiting the District from making the challenged payments until 5:00 p.m. Wednesday December 18^th, pending an appeal by the plaintiffs, who will have to decide whether to ask the court of appeals to enter an injunction.