Wisconsin Unions Lose First Round, But Win the Luck of the Draw in the Second

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Wisconsin unions seem to have lucked out with the federal judge assigned to their latest lawsuit trying to stop the state’s new collective bargaining law for state employees.  The Wisconsin Education Association, the AFL-CIO, the Wisconsin State Employees Union, and other unions that have been violently and belligerently protesting the law lost big on June 14 when the Wisconsin Supreme Court threw out the state court lawsuit that had been filed against the collective bargaining law.

The state Supreme Court declared all of biased county Judge MaryAnn Sumi’s erroneous injunctions and other orders preventing the law from going into effect void ab initio – invalid from the second they were issued – because she had “usurped the legislative power” of the state legislature.  The court dismissed claims that the passage of the law violated Wisconsin’s open meeting law.  Not only did the facts not support those claims, but Sumi had ignored prior precedent on these issues and violated basic separation of powers principles by intermeddling in the internal rules of the legislature for enactment of a law.

However, almost without missing a beat, these same unions filed a federal lawsuit the very next day (June 15) in the Western District of Wisconsin.  This new lawsuit, which had obviously been prepared prior to the Wisconsin Supreme Court’s decision, reads more like a press release or political manifesto than a serious legal document.  It claims that Wisconsin’s new law has no “discernable connection to any legitimate governmental objective” but instead is “punishing the political opponents and rewarding the political supporters of the Governor.” However, there are more than sufficient rational and reasonable grounds under the law to justify all the actions the Wisconsin legislature and the governor took to protect Wisconsin taxpayers and balance their state budget.

In the 28-page complaint, the unions are claiming that the Wisconsin law violates the First and Fourteenth Amendment because it discriminates between different classes of public employees (the law exempts public safety employees like police and firemen).  The law also supposedly interferes with the ability of union members “to support financially their unions’ activities” because it no longer allows automatic dues deductions from state paychecks.  Of course, the law does not prevent state employees who want to be members of a union from writing a personal check to their union to pay their membership dues.  But according to the unions, there is apparently a constitutional right to automatic dues deductions – the Wisconsin prohibition interferes with “the ability to finance their unions’ free speech and associational activities.”

But this issue has already been decided by the U.S. Supreme Court.  In 2009, Chief Justice John Roberts authored an opinion in Ysursa v. Pocatello Education Association that upheld Idaho’s ban on automatic payroll deductions for the union dues of state government workers.  That ban did not violate the unions’ First Amendment rights since the government has no obligation to subsidize unions’ political speech.

That claim by the union, however, is deeply revealing because it also shows that the anger of these unions over what happened in Wisconsin really comes down to a fundamental issue – money.  Despite their public cries about the new increased contributions by state employees to their health and pension benefits that the law requires, union executives have made no claim in the lawsuit whatsoever over those increases.  What these unions are really scared of is that they will be unable to convince their members to voluntarily pay their dues, the dues that pay for the big salaries and expensive perks that so many union executives enjoy at the expense of their members.

It is those dues that the unions also use for political purposes (that their members often disagree with) and to make political contributions to candidates that their members don’t always support.  It is those dues that unions have used to purchase the unswerving political loyalty of certain liberal politicians, lock, stock and barrel.  And they have reason to be scared by the Wisconsin law.  As John Fund reported recently, when New York City’s Transport Worker’s Union lost its right to automatic dues collection in 2007 after an illegal strike, “its income fell by more than 35% as many members stopped ponying up.”

Under the current assignment order in the Western District of Wisconsin, this new case has already been assigned to Chief Judge (and Obama appointee) William M. Conley, who was confirmed last year.  The unions were probably cracking open the champagne as soon as they found this out on June 15.  Why? Because while most Americans rightly view the concept of being forced to pay compulsory membership dues as a basic violation of their associational rights and their liberty, Conley’s prior work as a litigator included repeatedly representing clients who took the exact opposite view.

In 1989, Conley filed an amicus brief in the U.S. Supreme Court in Keller v. State Bar of California.  This was the case in which the Supreme Court held that the use by a bar association of compulsory dues to finance political and ideological activities with which some members disagreed violated those members’ First Amendment right to free speech.  Conley took the wrong (and losing) position in that case, arguing that the First Amendment did not prohibit a bar association from using mandatory licensing dues extracted from lawyers for lobbying and political purposes even if the lawyers disagreed with those political purposes.

Fortunately, Chief Justice Rehnquist didn’t listen to Conley.  In his majority opinion, Rehnquist approvingly cited Thomas Jefferson’s memorable axiom that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”

Conley’s opposite view in the Keller case – that forcing contributions does not violate the First Amendment – was not a one-time incident.  He took similar positions in other cases in the Seventh Circuit Court of Appeals in Crosetto v. State Bar of Wisconsin and Levine v. Heffernan.

So the unions have, unfortunately for the citizens of Wisconsin, snagged a federal judge who is clearly in line with their views on forced dues payments to unions.  Whether Conley can set aside his biases on this issue and render an objective opinion on the unwarranted claims the unions have advanced in this political lawsuit is an unanswered question.   But given the history and background of the overwhelmingly liberal, activist, “empathetic” judges that President Obama has advanced to the bench, there are reasons for grave concern.

What we may get in federal court is a repeat of what happened in the state court case – an out-of-control, trial-level judge ignoring the law and applicable precedent to give the unions the political result they wanted, who was then overturned by a higher court.  Even if Conley gives the unions what they want in federal district court, they are almost sure to lose in higher courts.  Hopefully, it won’t be too long before the score will be Wisconsin taxpayers 2 for 2, unions 0 for 2.

Source material can be found at this site.

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