A Dane County judge has struck down the state’s right-to-work law, ruling unions have property rights to collect fees for the services they provide to union members and nonmembers alike.

Judge William Foust issued the 15-page ruling on Friday, about a year after the law took effect.

The law prohibits unions and employers from entering agreements that require all employees to pay fees to 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.

A group of private-sector unions sued the state, arguing state and federal law require unions to provide collective bargaining services to all employees in a represented workplace, regardless of whether they pay union dues. That made the state’s right-to-work law an illegal “taking” of their services, they argued.

Foust agreed, writing that under the various labor laws and the right-to-work law “a free-rider problem is born — the ability of non-members to refuse to pay for something unions are compelled to provide by law.”

Attorney General Brad Schimel, who is defending the law in court, said his office was “extremely disappointed” by the ruling.

“We are confident the law will be upheld on appeal,” he said.

Gov. Scott Walker also said he was confident the law would be found constitutional.

Schimel said he expects “there will be a great deal of chaos” in the meantime, because the decision strikes down the law immediately.

Paul Secunda, a law professor and director of the labor and employment law program at Marquette University Law School, said he found Foust’s legal theory supportable but added there is enough ambiguity in the law that the 5-2 conservative majority on the Wisconsin Supreme Court will likely overrule him.

“At this point the Wisconsin Supreme Court is clearly not inclined to engage in any kind of analysis that would lead to right-to-work laws being found unconstitutional,” Secunda said.

Unions sue

In March 2015, the AFL-CIO and two other labor organizations sued the state, Walker, Schimel and other officials arguing the law was an unconstitutional taking of property from the unions, through union services given to non-union workers who are no longer required to pay dues as a condition of employment.

State Department of Justice lawyers responded that the law doesn’t take union property, and that similar laws have been upheld by courts in other states.

Soon after, Foust declined to issue a temporary injunction that would have put the law on hold, finding that there wasn’t adequate proof that unions would suffer irreparable harm without the injunction.

The state argued that federal and state law do not require unions to provide services to non-members.

In his ruling Friday Foust called the state’s argument “disingenuous,” noting that if a majority of employees in a workplace elect a union to represent it, state law, which is based on federal law, makes the union the exclusive representative of all employees in that workplace.

State AFL-CIO president Phil Neuenfeldt praised Foust’s decision, saying the law goes against the state’s “principles of fairness and democracy.”

“Today, the courts put a needed check on Scott Walker’s attacks on working families by ruling that Wisconsin’s right-to-work law is in violation of our state constitution,” he said, adding that the law “hurts all of Wisconsin by eroding the strength of our middle class.”

Assembly Speaker Robin Vos, R-Rochester, said Foust’s ruling showed he was trying to legislate from the bench.

“No one should be forced to join a union or pay union dues as a condition of employment,” said Vos. “I’m confident that this decision will be reversed in a higher court and worker freedom will prevail.”

Wisconsin Manufacturers & Commerce lobbyist Scott Manley decried the ruling as an “absurd and legally untenable conclusion that labor unions have a property right to the wages of workers.”

But Assembly Minority Leader Peter Barca, D-Kenosha, described the ruling as a victory for workers’ rights and middle-class families.

“Middle-class Wisconsin workers are in crisis, and so-called ‘right-to-work’ laws have been shown to drive down wages and economic growth,” said Barca. “The extreme right-wing Republican agenda has been incredibly harmful to working people and businesses in Wisconsin.”

No challenges

have succeeded

Wisconsin was the 25th state to enact a right-to-work law, and in no state has a challenge succeeded in striking down the law. Foust noted in his decision that his court “has no obligation” to follow decisions made in other states.

Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, said Foust’s decision was based on “extremely questionable grounds.”

“Without right-to-work protections, the injustice that workers face by having an unwanted union imposed on them against their will is compounded by the injustice of being forced to pay a portion of their hard-earned paychecks to union officials they oppose,” Semmens said.

Secunda, the Marquette Law School professor, said Foust is raising a similar issue to that raised by the dissenting judge in a 2-1 federal 7th Circuit Court of Appeals ruling out of Indiana. Wisconsin is part of the 7th circuit, although the Wisconsin unions have not filed their case in federal court.

The only way right-to-work would be ultimately quashed in Wisconsin is if a more liberal U.S. Supreme Court takes up the case, which would first require a ruling overturning the law in a different appellate court.

“If Judge Foust is right, it would make every single right-to-work law in the United States unconstitutional,” Secunda said.

Semmens called Foust’s decision an overreach and compared it to a 2012 decision from Dane County Circuit Judge Juan Colas to strike down Walker’s collective bargaining measure known as Act 10, which also hurt union membership.

In the five years since Act 10 was signed, union membership in Wisconsin has plummeted.

Just 8.3 percent of Wisconsin public and private workers belonged to unions in 2015, or 223,000 members, down from 13.3 percent, or 339,000 members, in 2011, according to the U.S. Department of Labor’s Bureau of Labor Statistics.

After Act 10, two of every three dues-paying members of the public employee union representing state workers dropped out, prompting the state’s three AFSCME councils to merge. The three councils claimed nearly 63,000 members in 2010. That number was likely fewer than 20,000 last year.

‘At this point the Wisconsin Supreme Court is clearly not inclined to engage in any kind of analysis that would lead to right-to-work laws being found unconstitutional.’ PAUL SECUNDA
Marquette University law professor,
noting the state Supreme Court’s
5-2 conservative majority
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Molly Beck covers politics and state government for the Wisconsin State Journal.

Matthew DeFour covers state government and politics for the Wisconsin State Journal.