Right to work rally 2015, State Journal photo

A crowd rallies outside the Wisconsin State Capitol as the state Assembly debates the right-to-work bill in March 2015.

AMBER ARNOLD — State Journal

The Wisconsin Court of Appeals on Tuesday granted a stay of a Dane County Circuit judge’s decision to strike down the state’s right-to-work law, reinstating the law while an appeal is pending.

The order by the state District 3 Court of Appeals, based in Wausau, overrules a decision made earlier by Dane County Circuit Judge William Foust to not issue a stay of his own ruling throwing out the law on the grounds that the law unconstitutionally takes property from unions without compensation.

In issuing the stay, presiding Judge Lisa Stark said “we conclude the State has established there is sufficient likelihood of success on appeal to warrant the grant of the stay” and that the lower court erred in concluding unions would suffer harm if a stay were issued.

The right-to-work law prohibits unions and employers from entering into agreements that require all employees to pay fees to join a union, either in the form of membership dues or “fair share” payments for those who opt out of joining a union but are still represented by it.

Three unions, including the AFL-CIO, sued the state after the law was enacted, arguing that state and federal laws require unions to provide collective bargaining services to all employees in a represented workplace, regardless of whether they pay union dues. They argued that made the state’s right-to-work law an illegal “taking” of their services.

Attorney General Brad Schimel, who oversees the state Department of Justice, in April requested an emergency stay of Foust’s ruling, arguing it should be put on hold pending an appeal to avoid confusion.

In a court filing seeking a stay of Foust’s ruling, the DOJ argued that continuing to enforce the state’s right-to-work law wouldn’t substantially harm labor unions — an argument the appeals court supported on Tuesday.

The unions responded by arguing that the intention of the law is to favor businesses at the expense of a small proportion of workers — the fewer than 10 percent who are members of unions.

“This attempt to place the entire burden of the law upon a small group further weakens the defendants’ showing of harm,” the unions wrote in their response.

In a statement released Tuesday, DOJ spokesman Johnny Koremenos said the appeals court’s decision to grant a stay gives “our citizens more certainty as the law works its way through the courts.”

“We feel confident the law will ultimately be found constitutional, as it has been in more than half the States across the country,” said Koremenos.

A request for comment from the Wisconsin AFL-CIO was not immediately returned late Tuesday.

State Journal reporter Rob Schultz contributed to this report.

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Molly Beck covers politics and state government for the Wisconsin State Journal.