Walker's anti-union law gutted ... it seems

The courts are siding with the protesters, mostly and for now.

The smoke has yet to clear from the Wisconsin state attorney general's decision last week not to appeal a court ruling that gutted most of Job-killer Gov. Scott Walker's anti-union law. You know, the one that triggered the month-long uprising in Madison.

Here's what happened: First, the Wisconsin state Court of Appeals upheld a ruling that struck down as unconstitutional parts of Walker's law, known as Act 10, at least for now. A few days later, state Attorney General J.B. Van Hollen said he wouldn't appeal that ruling. Instead, he said he'd wait for the court to rule on the merits of the bill.

It's not clear where that leaves Wisconsin public employee unions. The lawsuit was brought by the Madison teachers union and Public Employees Local 91, representing Milwaukee public workers. Van Hollen says the appeals court ruling only applies to those two unions.

Lester Pines, the lawyer representing the two unions said he's wrong. According to the Wisconsin State Journal,

He noted that Colas struck down major features of the law, including the prohibition on collective bargaining beyond base wages, the requirement that local voters approve any raises exceeding the cost of living, mandatory annual recertification elections for unions, prohibiting payroll deductions for union dues and other provisions. 

“The state has consistently framed the question to say, ‘Employers don’t worry about this. This doesn’t apply to you,’ ” Pines said. “Which is somewhat unprecedented, since a circuit court has declared part of the law unconstitutional on its face. It has said the law is null and void, as if it does not exist.” 

The lawsuit was filed against Walker and the Wisconsin Employment Relations Commission, which arbitrates labor disputes between public employers and its workers and unions. WERC chief legal counsel Peter G. Davis said Friday that his agency “has not determined what the impact of the Colas decision on the WERC and public sector employers might be.”

A Marquette University law professor says the constitutional challenge to the law is a serious one.  Commenting on the initial ruling, Edward A. Fallone writes that similar challenges have succeeded in other states. He notes that the law exempts police and firefighter unions. As a result,

(Judge Juan Colas) ...held that the law differentiates between entities that represent public employees in collective bargaining — imposing conditions on certain bargaining entities but not others – and that the State had failed to advance a sufficient justification for this disparate treatment.  According to Judge Colas, the differential treatment of bargaining entities violated the First Amendment right of the affected unions to association and expression, and it also violated the Equal Protection Clause.  Judge Colas also held that the law violates the Home Rule provisions of the Wisconsin Constitution by dictating rules for Milwaukee that the law did not apply to other municipalities. 

Stay tuned.