A Dane County judge who last year declared portions of a state law restricting public worker collective bargaining rights to be unconstitutional found two members of the Wisconsin Employment Relations Commission in contempt of court Monday for continuing to order union recertification elections despite his ruling.

Dane County Circuit Judge Juan Colas ordered WERC commissioners James Scott and Rodney Pasch to follow his September 2012 ruling that declared as unconstitutional annual union recertification elections under Act 10, the collective bargaining law that Gov. Scott Walker signed in 2011, among other provisions of the law he declared void.

“I think the contempt is nothing more than an attempt to elude the application of a judgment of the court that the commission knew full well applied,” Colas said

The commission had argued that Colas’ ruling last year applied only to Madison Teachers Inc. and a Milwaukee municipal workers union, who were plaintiffs in a lawsuit challenging Act 10, and did not apply statewide to other unions. But Colas said that WERC purposefully decided to disregard his ruling, which he said made enforcement of parts of the law unconstitutional to anyone anywhere in the state.

“I think that is contempt,” Colas said, “an intentional disregard of this court’s judgment.”

Walker spokesman Tom Evenson said the administration is confident the state Supreme Court will overturn Colas’ ruling.

The court is scheduled to hear arguments on Nov. 11.

“Act 10 is a constitutional law enacted by the people’s representatives and upheld in every case where we’ve had a final decision,” Evenson said. “We are confident Act 10 will be upheld in all remaining cases.”

The immediate impact is that WERC will cancel recertification elections, which were to be held Nov. 1, although WERC general counsel Peter Davis said it’s possible they could still be held by then depending on how quickly the Supreme Court acts on the state’s appeal.

Colas also ordered WERC to recognize the Kenosha Education Association as the bargaining unit for Kenosha teachers, after WERC had informed KEA that because it had failed to file for a recertification election it was no longer recognized.

“This is a very big day for us,” KEA executive director Joe Kiriaki said. He added that bargaining with the district will begin “as soon as they’re ready.”

Wisconsin Education Association Council president Betsy Kippers also said that statewide, teachers unions can again contact school districts to begin contract negotiations over wages and working conditions, as before Act 10 existed.

“We believe our case was about one thing: the value of fairness,” Kippers said.

Recertification elections for municipal worker unions were to take place early next year but will not happen unless the court overturns Colas’ ruling before then.

Assistant Attorney General Steven Kilpatrick, who argued the case for WERC and Walker, said an appeal is expected, and WERC will also likely seek an order to stay Colas’ contempt ruling.

In his ruling, Colas said the groups that asked for the contempt motion, which included WEAC, KEA and several other unions, are entitled to do so by law, where a court has declared a law unconstitutional.

Once a law has been found by a court to be unconstitutional, it is null and void to everyone, “not only to the parties that brought the lawsuit,” Colas said.

“If it wasn’t clear to the commission, it should be now,” Colas said. “They are not to enforce a law that has no legal effect.”

The question of money paid to the state by unions when they filed for recertification elections is yet to be decided.

Afterward, Lester Pines, a lawyer representing the plaintiffs in the case, said the court’s ruling affirmed the rule of law and showed the executive branch of government must follow the rulings of the judicial branch.

“The judge explained to the commission that they had an opportunity to argue their case before him and they lost,” Pines said.

Referring specifically to a statement made last year by Walker in which the governor disparaged Colas as a “liberal activist judge” after Colas’ ruling on Act 10, Pines promised that any party in the case who does that will be back in court facing another contempt motion.

“If (Walker’s) representative again attacks the judiciary and the judge, I will seek contempt,” Pines said, “whether it’s the governor or anyone else.”


Ed Treleven is the courts reporter for the Wisconsin State Journal.