By Erik Reinthaler, WJI Intern
A divided Wisconsin Court of Appeals late last month reversed a Dane County judge’s ruling that declared major portions of Act 10 unconstitutional.
Act 10, enacted in 2011 under former Gov. Scott Walker, significantly limited collective bargaining rights for most state and local government employees while preserving broader bargaining rights for municipal police officers, firefighters and deputy sheriffs.
The appellate court found that Wisconsin lawmakers had a reasonable basis for treating some public safety employees differently from others when limiting collective bargaining rights.
A divided Wisconsin Court of Appeals late last month reversed a Dane County judge’s ruling that declared major portions of Act 10 unconstitutional.
Act 10, enacted in 2011 under former Gov. Scott Walker, significantly limited collective bargaining rights for most state and local government employees while preserving broader bargaining rights for municipal police officers, firefighters and deputy sheriffs.
The appellate court found that Wisconsin lawmakers had a reasonable basis for treating some public safety employees differently from others when limiting collective bargaining rights.
Gundrum
Judge Mark Gundrum wrote for District 2 of the Wisconsin Court of Appeals.
The lawsuit, filed in 2023 by several public employee unions and individual public employees, challenged the different treatment under the Wisconsin Constitution’s equal protection guarantee. The plaintiffs argued there was no rational basis for allowing some public safety employees to retain broader collective bargaining rights while denying those same rights to other public safety employees, including Capitol Police, University of Wisconsin police officers, correctional officers and conservation wardens.
The Court of Appeals held that no constitutional violation occurred, saying that courts must uphold the Legislature’s policy choices if lawmakers could have had any rational justification for making them. The court found that the Legislature reasonably could have decided that police officers, firefighters and deputy sheriffs play especially critical public safety roles and therefore should retain broader bargaining rights while still advancing Act 10’s cost-saving goals. The majority pointed to earlier state and federal court decisions rejecting similar constitutional challenges.
Judge Shelley Grogan joined the majority but wrote separately that a law’s constitutionality should not depend on changes in the membership of the Wisconsin Supreme Court. She wrote that policy disagreements over Act 10 should be resolved by the Legislature rather than the courts.
Judge Lisa Neubauer dissented, saying that the Legislature drew arbitrary distinctions between employees performing similar public safety work. She criticized the majority for relying on hypothetical justifications, including that lawmakers sought to preserve essential public safety services while maximizing Act 10’s cost savings and could rely on other law enforcement agencies or the National Guard if excluded public safety employees stopped working.
Dane County Circuit Judge Jacob Frost had agreed with the plaintiffs. He found that the law treated similarly situated public safety employees differently without a rational basis. Frost stayed his ruling pending appeal, however, so Act 10 has remained in effect while the case moves through the courts.
After Frost stayed his ruling, the unions asked the Wisconsin Supreme Court to take the case directly, without first requiring a decision from the Court of Appeals. In February 2025, the justices declined the request, allowing the appeal to proceed through the normal appellate process.
Act 10 remains in effect pending any review by the Supreme Court.
Justice Chris Taylor, who joined the Supreme Court on Aug. 1, and Justice Janet Protasiewicz have both publicly expressed views about Act 10. Before joining the court, Taylor served as a Democratic state representative and was a vocal opponent of the law. Protasiewicz has said she agreed with the dissent in the Wisconsin Supreme Court’s 2014 decision upholding Act 10 against an earlier constitutional challenge.
Justice Brian Hagedorn has announced that he will not participate in any Wisconsin Supreme Court litigation involving Act 10 because he served as Walker’s chief legal counsel during the law’s drafting and later defense.
The lawsuit, filed in 2023 by several public employee unions and individual public employees, challenged the different treatment under the Wisconsin Constitution’s equal protection guarantee. The plaintiffs argued there was no rational basis for allowing some public safety employees to retain broader collective bargaining rights while denying those same rights to other public safety employees, including Capitol Police, University of Wisconsin police officers, correctional officers and conservation wardens.
The Court of Appeals held that no constitutional violation occurred, saying that courts must uphold the Legislature’s policy choices if lawmakers could have had any rational justification for making them. The court found that the Legislature reasonably could have decided that police officers, firefighters and deputy sheriffs play especially critical public safety roles and therefore should retain broader bargaining rights while still advancing Act 10’s cost-saving goals. The majority pointed to earlier state and federal court decisions rejecting similar constitutional challenges.
Judge Shelley Grogan joined the majority but wrote separately that a law’s constitutionality should not depend on changes in the membership of the Wisconsin Supreme Court. She wrote that policy disagreements over Act 10 should be resolved by the Legislature rather than the courts.
Judge Lisa Neubauer dissented, saying that the Legislature drew arbitrary distinctions between employees performing similar public safety work. She criticized the majority for relying on hypothetical justifications, including that lawmakers sought to preserve essential public safety services while maximizing Act 10’s cost savings and could rely on other law enforcement agencies or the National Guard if excluded public safety employees stopped working.
Dane County Circuit Judge Jacob Frost had agreed with the plaintiffs. He found that the law treated similarly situated public safety employees differently without a rational basis. Frost stayed his ruling pending appeal, however, so Act 10 has remained in effect while the case moves through the courts.
After Frost stayed his ruling, the unions asked the Wisconsin Supreme Court to take the case directly, without first requiring a decision from the Court of Appeals. In February 2025, the justices declined the request, allowing the appeal to proceed through the normal appellate process.
Act 10 remains in effect pending any review by the Supreme Court.
Justice Chris Taylor, who joined the Supreme Court on Aug. 1, and Justice Janet Protasiewicz have both publicly expressed views about Act 10. Before joining the court, Taylor served as a Democratic state representative and was a vocal opponent of the law. Protasiewicz has said she agreed with the dissent in the Wisconsin Supreme Court’s 2014 decision upholding Act 10 against an earlier constitutional challenge.
Justice Brian Hagedorn has announced that he will not participate in any Wisconsin Supreme Court litigation involving Act 10 because he served as Walker’s chief legal counsel during the law’s drafting and later defense.