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Jul 31 2014

MTI Press Release Regarding Act 10 Decision

Wisconsin Supreme Court Decision on Act 10 – click to view a .pdf copy

Madison Teachers Inc.

Statement by MTI Executive Director John Matthews

Press Release

July 31, 2014

 

THE DECISION BY THE MAJORITY OF THE SUPREME COURT REVERSING MTI’S VICTORY IN CIRCUIT COURT WHERE ACT 10 WAS FOUND, IN GREAT PART, TO BE UNCONSTITUTIONAL, IS NOT ONLY EXTREMELY DISAPPOINTING, BUT IS MORALLY BANKRUPT, SAID MTI EXECUTIVE DIRECTOR JOHN MATTHEWS. AS A RESULT OF MTI’S CHALLENGE OF ACT 10, CIRCUIT COURT JUDGE JUAN COLAS FOUND MUCH OF ACT 10 TO BE UNCONSTITUTIONAL, RULING THAT IT VIOLATED WISCONSIN PUBLIC EMPLOYEES’ FREEDOM OF SPEECH, FREEDOM OF ASSOCIATION, AND THE EQUAL PROTECTION CLAUSE OF THE U.S. CONSTITUTION, BECAUSE ACT 10 TREATS SEPERATE CLASSES OF PUBLIC EMPLOYEES DIFFERENTLY, MATTHEWS SAID. THE SUPREME COURT TODAY REVERSED JUDGE COLAS. COLAS’ RULING WAS IN SYNC WITH U.S. SUPREME COURT CHIEF JUSTICE HOLMES WHO, MANY YEARS AGO, SAID THAT UNIONS WERE ORGANIZED OUT OF NECESSITY – THAT A SINGLE EMPLOYEE IS HELPLESS IN DEALING WITH THEIR EMPLOYER – THAT A UNION GIVES WORKERS THE OPPORTUNITY TO DEAL ON AN EQUAL FOOTING WITH THEIR EMPLOYER. THE WISCONSIN SUPREME COURT’S RULING TODAY ALSO REVERSED 50+ YEARS OF LEGISLATION WHICH ENABLED PUBLIC EMPLOYERS AND EMPLOYEE GROUPS TO WORK TOGETHER TO MAKE WORKPLACES NOT ONLY MORE PRODUCTIVE, BUT SAFER, MATTHEWS SAID. JUSTICE GABLEMAN, IN ATTEMPTING TO JUSTIFY HIS RULING, DIFFERED FROM JUDGE COLAS BY STATING THAT PUBLIC SECTOR BARGAINING IS NOT A CONSTITUTIONAL RIGHT, BUT A “CREATION OF LEGISLATIVE GRACE.”

IN A HARSHLY WORDED DISSENT, TO THE MAJORITY OPINION, JUSTICE ANN WALSH BRADLEY, JOINED BY CHIEF JUSTICE SHIRLEY ABRAHAMSON SAYS THE MAJORITY SIMPLY DID NOT ADDRESS THE ISSUES PRESENTED TO THE COURT BY MADISON TEACHERS, BUT “REFRAMES”, “DODGES” AND TWISTED THE ISSUES TO ENABLE THEIR OWN DESIRED OUTCOME.

BRADLEY QUOTES FORMER U.S. SUPREME COURT CHIEF JUSTICE REHNQUIST CALLING THE “AUTHORITY TO DECLARE UNCONSTITUTIONAL A LAW PASSED BY LEGISLATURE “PROBABLY THE MOST SIGNIFICANT SINGLE CONTRIBUTION THE UNITED STATES HAS MADE TO THE ART OF GOVERNMENT.”

SHE QUOTES REHNQUIST:

“I BELIEVE THAT THE CREATION OF AN INDEPENDENT CONSTITUTIONAL COURT, WITH THE AUTHORITY TO DECLARE UNCONSTITUTIONAL LAWS PASSED BY THE STATE OR FEDERAL LEGISLATURES, IS PROBABLY THE MOST SIGNIFICANT SINGLE CONTRIBUTION THE UNITED STATES HAS MADE TO THE ART OF GOVERNMENT.”

IN CONCLUSION TO THIS ISSUE, JUSTICE BRADLEY STATES, “WE MUST CONSTANTLY GUARD AGAINST PROPER JUDICIAL RESTRAINT BEING TRANSFORMED INTO IMPROPER JUSTICIAL ACQUIESCENCE.”

IN REFERRING TO THE MAJORITY’S MANIPULATION OF THE FACTS IN THE ACT 10 CASE, BRADLEY STATES, “IN THIS CASE WE ARE PRESENTED WITH CONSTITUTIONAL CHALLENGES TO ACT 10. THE MAJORITY APTLY SETS FORTH ITS RESULTS. HOWEVER, IT IS DIFFICULT TO FIND IN THE MAJORITY’S LENGTHY OPINION A DISCUSSION OF THE ACTUAL ARGUMENTS AND ISSUES PRESENTED BY THE PARTIES.”

BRADLEY CONTINUES, “AN ACTUAL ISSUE PRESENTED BY MADISON TEACHERS IS: DOES ACT 10 INFRINGE ON THE ASSOCIATIONAL RIGHTS OF PUBLIC EMPLOYEES TO ORGANIZE? YET THE MAJORITY REFRAMES THE ISSUE TO DETERMINE WHETHER THERE IS A CONSTITUTIONAL RIGHT TO COLLECTIVE BARGAINING AND WHETHER THE STATE HAS AN OBLIGATION TO PROMOTE FIRST AMENDMENT RIGHTS.”

AS REGARDS THE CONSTITUTIONAL RIGHT OF FREEDOM OF ASSOCIAITON, JUSTICE BRADLEY WRITES “THE RESULT OF THE MAJORITY’S DODGE IS THE NEEDLESS DIMINUTION OF MULTIPLE CONSTITUTIONAL RIGHTS:

  • THE RIGHT OF FREEDOM OF ASSOCIATION TO ORGANIZE IS DILUTED AS THE MAJORITY HAS OPENED THE DOOR FOR THE STATE TO WITHHOLD BENEFITS AND PUNISH INDIVIDUALS BASED ON THEIR MEMBERSHIP IN DISFAVORED GROUPS.
  • MUNICIPALITIES’ RIGHT TO SELF-GOVERN AS GRANTED BY THE HOME RULE AMENDMENT RINGS HOLLOW AS THE MAJORITY DETERMINES THAT WHEN THE STATE HAS BUDGETARY DIFFICULTIES, MATTERS DEALING WITH LOCAL FINANCES ARE NOW MATTERS OF STATEWIDE CONCERN, EVEN ABSENT ANY SHOWING OF AN IMPACT ON THE STATE BUDGET.
  • AND THE RIGHT TO CONTRACT IS UNDERMINED AS THE MAJORITY DEMONSTRATES ITS WILLINGNESS TO CREATIVELY INTERPRET A CONTRACT IN A MANNER PERMITTING THE STATE TO DISREGARD IT.”

THEN SHE ADDS, “I DETERMINE THAT THE MAJORITY’S FAILURE TO ADDRESS THE ACTUAL ISSUES PRESENTED ALLOWS IT TO SUBSTITUTE ANALYSES RESULTING IN CONCLUSIONS THAT COUNTENANCE THE VIOLATION RATHER THAN THE PROTECTION OF CONSTITUTIONAL RIGHTS. BECAUSE I DETERMINE THAT ACT 10 UNCONSTITUTIONALLY INFRINGES ON PROTECTED RIGHTS, I RESPECTFULLY DISSENT.”

TO THIS, JUSTICE BRADLEY CONCLUDES, “MADISON TEACHERS ASSERTS THAT ACT 10 VIOLATES THE FIRST AMENDMENT RIGHT OF FREEDOM OF ASSOCIATION BY INFRINGING ON ITS RIGHT TO ORGANIZE. GIVEN THAT THE STATE HAS CONCEDED THAT THE CHALLENGED PROVISIONS IN ACT 10 CANNOT SURVIVE SUCH A CONSTITUTIONAL CHALLENGE IF A STRICT SCRUTINY REVIEW IS APPLIED, THE MAJORITY HAS TO AVOID STRICT SCRUTINY TO ARRIVE AT ITS RESULT.4 HOW DOES IT DO THAT? IT JETTISONS THE FOCUS OF ITS ANALYSIS.”

“RATHER THAN ADDRESSING PLAINTIFF’S ISSUE THAT ACT 10 INFRINGES ON ITS CONSTITUTIONAL RIGHT TO ORGANIZE INTO A COLLECTIVE BARGAINING UNIT, THE MAJORITY ERRONEOUSLY ASSERTS THAT PLAINTIFF IS CLAIMING A RIGHT TO BARGAIN AS A COLLECTIVE BARGAINING UNIT. IT THEN DETERMINES THAT NO SUCH RIGHT EXISTS. IN ONE INSTANCE, THE MAJORITY APPEARS TO ACKNOWLEDGE THE PLAINTIFF’S ACTUAL CLAIM BUT THEN DISTORTS IT. THE MAJORITY BEGINS THE SENTENCE BY CORRECTLY REFERENCING “THE ‘RIGHT’ THE PLAINTIFFS REFER TO – THE RIGHT TO ASSOCIATE WITH A CERTIFIED REPRESENTATIVE. SO FAR, SO GOOD. HOWEVER, IT THEN ENDS THE SENTENCE WITH A DISTORTION OF THE CLAIM, DESCRIBING THE RIGHT BEING ASSERTED AS A RIGHT “TO COLLECTIVELY BARGAIN ON ANY SUBJECT.”

JUSTICE BRADLEY ASSERTS THAT THE MAJORITY AVOIDED THE SECOND ISSUE PRESENTED BY MADISON TEACHERS, BUT ONCE AGAIN USED IT TO CREATE A BASIS FOR WHAT IT PREJUDICIALLY WANTED TO DECIDE. BRADLEY WROTE, “THE MAJORITY SIMILARLY AVOIDS ADDRESSING MADISON TEACHERS’ SECOND ARGUMENT, THAT ACT 10 CREATES UNCONSTITUTIONAL CONDITIONS. AGAIN, IT SIMPLY RESHAPES THE ARGUMENT. THE MAJORITY REASONS THAT BECAUSE NEGOTIATING WITH EMPLOYEES IS NOT CONSTITUTIONALLY REQUIRED, IT CANNOT BE A CONSTITUTIONAL VIOLATION TO WITHHOLD SUCH BENEFITS FROM MEMBERS OF COLLECTIVE BARGAINING UNITS. THE FOCUS OF ITS ANALYSIS IS DECEPTIVE AS THE DOCTRINE OF UNCONSTITUTIONAL CONDITIONS DOES NOT LOOK AT WHETHER THE BENEFIT IS REQUIRED. REGARDLESS OF WHETHER THE BENEFIT IS REQUIRED, THE DOCTRINE FOCUSES ON WHETHER AN INDIVIDUAL IS REQUIRED TO GIVE UP A CONSTITUTIONALLY PROTECTED RIGHT IN ORDER TO OBTAIN THE BENEFIT.”

IN CONCLUDING, JUSTICE BRADLEY WRITES, “BECAUSE ACT 10 INFRINGES ON ASSOCIATIONAL RIGHTS TO ORGANIZE BY DISCOURAGING AND PUNISHING MEMBERSHIP IN COLLECTIVE BARGAINING UNITS, IT CAN SURVIVE STRICT SCRUTINY ONLY IF IT IS NARROWLY TAILORED TO MEET A COMPELLING GOVERNMENT INTEREST. THE STATE HAS MADE NO ARGUMENT THAT ACT 10 IS NARROWLY TAILORED TO MEET A COMPELLING GOVERNMENT INTEREST AND HAS CONCEDED THAT IT CANNOT MEET THIS STANDARD. ACCORDINGLY, I CONCLUDE THAT THE CHALLENGED PROVISIONS OF ACT 10 VIOLATE THE CONSTITUTIONAL RIGHT OF PUBLIC EMPLOYEES TO ORGANIZE IN A COLLECTIVE BARGAINING UNIT.”

IN SUM, JUSTICE BRADLEY CONCLUDED HER REMARKS, “THE MAJORITY’S FAILURE TO ADDRESS THE ACTUAL ISSUES PRESENTED IN THIS CASE ALLOWS IT TO REACH RESULTS THAT COUNTENANCE THE NEEDLESS DIMINUTION OF MULTIPLE CONSTITUTIONAL RIGHTS. THE RIGHT TO FREEDOM OF ASSOCIATION IS DILUTED AS THE MAJORITY HAS OPENED THE DOOR FOR THE STATE TO WITHHOLD BENEFITS AND PUNISH INDIVIDUALS BASED ON THEIR MEMBERSHIP IN DISFAVORED GROUPS.”

GOVERNOR WALKER SAID HE WOULD DIVIDE AND CONQUER PUBLIC EMPLOYEES AND HE DID WITH ACT 10. NOW HIS CONSERVATIVE SUPPORTERS ON THE SUPREME COURT HAVE SAID WHAT HE DID IN ACTING TO DIVIDE AND CONQUER IS CONSTITUTIONAL.

MATTHEWS SAID THAT THE JUSTICES MAKING UP THE CONSERVATIVE MAJORITY ON THE SUPREME COURT ACTED IN LOCKSTEP IN SUPPORT OF GOVERNOR WALKER AND HIS RIGHT-WING FINANCIERS, THE COALITION OF THE KOCH BROTHERS, KARL ROVE AND THE WISCONSIN CLUB FOR GROWTH. THE LACK OF RATIONALE TO SUPPORT THEIR DECISION IS APPALLING, MATTHEWS SAID. WHAT IS EQUALLY APPALLING IS THAT MOST OF THE JUSTICES IN THE MAJORITY WERE ELECTED AS A RESULT OF EXTENSIVE POLITICAL ADVERTISING BY THESE GROUPS – AND BY WISCONSIN MANUFACTURERS AND COMMERCE (WMC), AS WELL. HOW THOSE JUSTICES COULD NOT HAVE SEEN THAT THEIR PARTICIPATION IN THIS CASE WAS UNETHICAL BOGGLES MY MIND, MATTHEWS SAID. HE SAID THAT THE CAMPAIGN EXPENDITURES OF THESE GROUPS WERE SO EXTENSIVE AND NEGATIVE THAT THE COURT SPLIT 3-3, AS TO WHETHER THE AUTHOR OF THE ACT 10 DECISION, JUSTICE GABLEMAN, SHOULD BE REPRIMANDED, BECAUSE OF FALSE CLAIMS HE MADE DURING HIS CAMPAIGN, MATTHEWS SAID. GABLEMAN REPORTEDLY BENEFITTED FROM $2.75 MILLION IN ISSUE ADS PAID FOR BY THE KOCH BROTHERS, THE CLUB FOR GROWTH AND WMC. MATTHEWS SAID, IN HIS OPINION, THAT ALONE SHOULD HAVE CAUSED GABLEMAN TO RECUSE HIMSELF FROM PARTICIPATION IN THE ACT 10 CASE.

THESE QUESTIONABLE ACTIONS BY SOME MEMBERS OF THE COURT ARE SIMILAR IN COLOR TO THOSE OF THE GOVERNOR AND HIS RE-ELECTION STAFF, WHICH ARE NOW BEING DISCUSSED BY THE PUBLIC – AND THE JOHN DOE INQUERY. THE NON-PARTISAN GOVERNMENT ACCOUNTABILITY BOARD VOTED UNANIMOUSLY TO RECOMMEND THAT THE DISTRICT ATTORNEY PROCEED WITH THE JOHN DOE INVESTIGATION INTO THEIR ALLEGED IMPROPER CAMPAIGN ACTIVITIES AND COORDINATION. THE GOVERNOR, IN RETALIATION, AND IN ATTEMPT TO HALT THE INVESTIGATION REFUSED TO RE-APPOINT THE GOVERNMENT ACCOUNTABILITY BOARD CHAIR, A HIGHLY RESPECTED RETIRED JUDGE. MATTHEWS ASKED, “WHEN WILL THE RESIDENTS OF WISCONSIN SAY ‘ENOUGH’ ABOUT THE GOVERNOR’S UNETHICAL BEHAVIOR?”

GOVERNOR WALKER’S ACT 10 OUTLAWS NEGOTIATIONS, A PROCESS WHICH ENABLES EMPLOYEES TO DISCUSS WITH THEIR EMPLOYER THE BEST WAY FOR THEM TO WORK TOGETHER TO ACCOMPLISH THE MISSION OF THE EMPLOYER AND, IN RETURN, WHAT THE EMPLOYEES SHOULD RECEIVE F0R ACCOMPLISHING THEIR EMPLOYER’S GOALS. NEGOTIATIONS CAN ALSO BE RELATIVE TO THE WAGES AND BENEFITS WHICH ONE RECEIVES FOR HIS/HER WORK.

AS A RESULT OF HIS TELEVISED PLEDGE TO DIVIDE AND CONQUER PUBLIC EMPLOYEES, GOVERNOR WALKER HAS DESTROYED THE LONG-STANDING POSITIVE PROCESS OF EMPLOYERS AND EMPLOYEES WORKING TOGETHER IN NEGOTIATIONS. WORKING CONDITIONS AS A RESULT HAVE BEEN ROLLED-BACK TO THE MID-1950’S BY SOME REGRESSIVE PUBLIC EMPLOYERS. MATTHEWS SAID A MATTER THE GOVERNOR LIKELY DID NOT CONSIDER WHEN PROMOTING ACT 10 IS THAT A TEACHER’S WORKING CONDITIONS ARE A CHILD’S LEARNING CONDITIONS. THUS, HE HAS HARMED LEARNING CONDITIONS OF WISCONSIN’S CHILDREN.

IN CONDEMNING ACT 10, MATTHEWS SAID THAT ONE ONLY HAS TO LOOK AT HOW SOME PUBLIC EMPLOYERS HAVE TREATED EMPLOYEES GIVEN THE OBTUSE AUTHORITY GRANTED THEM BY THIS LEGISLATION. TO THE DETRIMENT OF THEIR EMPLOYEES, SOME REACTIONS BY EMPLOYERS HAVE DRASTICALLY REVISED WAGE SCHEDULES WHICH HAD BEEN DEVELOPED IN NEGOTIATIONS. SOME EMPLOYERS HAVE ROLLED-BACK BENEFITS AND HAVE EXTENDED WORK HOURS. SOME WAGE MODIFICATIONS ARE TO THE POINT OF PROVIDING NO WAGE INCREASES, OR APPLYING THE PERCENTAGE WAGE INCREASE FOR A FIRST YEAR TEACHER TO ONE WHO HAS PROVIDED 30 OR MORE YEARS’ SERVICE, CAUSING A LONG-TERM EMPLOYEE TO RECEIVE APPROXIMATELY ONE-HALF OF THE DESERVED WAGE INCREASE. MANY PUBLIC EMPLOYEES, AS A RESULT OF ACT 10, HAVE TAKE-HOME PAY 18% LESS THAN IN 2010. THE EFFECT OF THIS ON EACH LOCAL COMMUNITY’S ECONOMY IS SUBSTANTIAL. ACT 10 HAS EVEN CAUSED SOME PUBLIC EMPLOYEES TO LOSE THEIR HOMES TO FORECLOSURE.

THE GOVERNOR LIED IN HIS RATIONALE TO GAIN PASSAGE OF ACT 10. HE CLAIMED THE STATE WAS IN FINANCIAL TROUBLE, A CLAIM THAT WAS REFUTED BY THE IMPARTIAL LEGISLATIVE FISCAL BUREAU; i.e., THE STATE WAS NOT IN FINANCIAL TROUBLE IN 2011. THE GOVERNOR LIED TO ENABLE HIM TO USURP LOCAL CONTROL. AS A RESULT SCHOOLS ARE STARVING, AS ARE CITIES , COUNTIES AND VILLAGES.A RECENT REPORT SHOWS THAT OF ALL 50 STATES ONLY ALABAMA CUT MORE FROM STATE AID TO EDUCATION THAN DID WISCONSIN. WALKER’S GOAL IS TO STARVE PUBLIC EDUCATION UNTIL IT FAILS, AND THEN TO ENABLE HIS CORPORATE DONORS TO PRIVATIZE IT FOR PROFIT.

BECAUSE OF ACT 10, THE NUMBER OF TEACHERS LEAVING THE PROFESSION HAS INCREASED GREATLY. THE IMPACT ON THOSE WANTING TO BE TEACHERS HAS PLUMMETED. THERE ARE FAR FEWER IN OUR INSTITUTIONS OF HIGHER LEARNING WHO ARE ENROLLING IN – OR STAYING IN EDUCATION.

FOR THE FIRST TIME IN MADISON, THIS YEAR THE NUMBER OF THOSE LEAVING THE TEACHING PROFESSION VIA RESIGNATION HAS EXCEEDED RETIREMENTS. PUBLIC EMPLOYEES SIMPLY DO NOT WANT TO BE SUBJECT TO THE ABUSE EMPLOYERS CAN WREAK UPON THEM, GIVEN THE IMBALANCE CAUSED BY ACT 10. THIS, TOO, FLIES IN THE FACE OF U.S. SUPREME COURT CHIEF JUSTICE HOLMES WHO SAID THAT UNIONS ARE NECESSARY TO PROVIDE EMPLOYEES AN EQUAL FOOTING IN DEALING WITH EMPLOYERS.

ONE MUST LOOK AT THE IMPACT ACT 10 HAS HAD ON PUBLIC EMPLOYEES, AND THEREFORE, ON THE QUALITY OF LIFE IN WISCONSIN. COLLECTIVE BARGAINING HAS PROVIDED LABOR PEACE FOR MANY YEARS. WE ALL RELY ON PUBLIC EMPLOYEES – THEY PURIFY OUR WATER, PLOW OUR STREETS AND HIGHWAYS, THEY ARE OUR FIREFIGHTERS AND OUR POLICE OFFICERS WHO KEEP OUR HOMES AND NEIGHBORHOODS SAFE, THEY CARE FOR THE HANDICAPPED AMONG US, AND THEY TEACH OUR CHILDREN AND GRANDCHILDREN TO BECOME PRODUCTIVE CITIZENS. ACT 10 HAS DESTROYED MOST OF THE SECURITY THESE WORKERS DESERVE. IT HAS EVEN ENABLED SOME UNSCRUPULOUS EMPLOYERS TO DESTROY THE PROCESSES TO WHICH THEY HAD PREVIOUSLY AGREED TO ASSURE WORKPLACE JUSTICE.

MATTHEWS SAID THAT, IN HIS OPINION, BECAUSE OF THE SOURCE OF FUNDS ENABLING THE ELECTION OF THE MAJORITY JUSTICES IN THIS CASE, THEIR PARTICIPATION IN THE CASE IS ETHICALLY QUESTIONABLE, THAT IS ESPECIALLY TRUE OF JUSTICE GABLEMAN, HE SAID.   SHAME ON THE MAJORITY OF THE COURT FOR EVEN PARTICIPATING IN THIS LITIGATION, AND SHAME ON THE GOVERNOR AND LEGISLATORS FOR ENABLING THIS ABUSE OF PUBLIC EMPLOYEES AND THE PUBLIC TRUST. SCOTT WALKER DID WHAT HE SAID HE WOULD DO – DIVIDE AND CONQUER – AND THE QUALITY OF EDUCATION, AND INDEED THE QUALITY OF LIFE OF THE PEOPLE OF OUR GREAT STATE WILL LONG SUFFER AS A RESULT OF THIS DECISION, HE CONCLUDED.