WILLIAM M. CONLEY, District Judge.
Under Act 10, the State left the rights of public safety employees to unionize and collectively bargain unchanged, while general employees lost most of these rights. Here, plaintiffs challenge three, specific provisions of Act 10 impacting only general employees and their unions: (1) the elimination of mandatory dues and fair share fees and the stripping of all collective bargaining rights, except on "total base wages"; (2) the apparently-unprecedented requirement for annual recertification by an absolute majority of union members (as opposed to conditional or member-driven recertification by a simple majority of those actually voting); and (3) a prohibition on the voluntary withholding of union dues from a general employee's paycheck.
Now before the court is plaintiffs' motion for summary judgment and defendants' motion for judgment on the pleadings.
The sole issue before the court, therefore, is whether the State's dismantling of public union rights in piecemeal fashion implicates constitutional protections. Plaintiffs assert two causes of action: (1) an Equal Protection claim as to all three challenged provisions in Act 10; and (2) a First Amendment claim as to the prohibition on automatic dues withholding for members of general employee unions.
The court finds that plaintiffs have not met their burden with respect to their Equal Protection challenge to Act 10's principal provisions limiting the collective bargaining rights of general employees and their unions. The State, however, has not articulated, and the court is now satisfied cannot articulate, a rational basis for picking and choosing from among public unions, those (1) that must annually obtain an absolute majority of its voluntary members to remain in existence or (2) that are entitled to voluntary, assistance with fundraising by automatic deduction, at least not a rational basis that does not offend the First Amendment. So long as the State of Wisconsin continues to afford ordinary certification and dues deductions to mandatory public safety unions with sweeping bargaining rights, there is no rational basis to deny those rights to voluntary general unions with severely restricted bargaining rights.
Accordingly, the court will (1) grant defendants judgment on those claims challenging restrictions on the collective bargaining rights of general employee unions on Equal Protection grounds, (2) grant plaintiffs summary judgment on their claims challenging annual, absolute majority union recertification and denial of voluntary union dues deductions as to general employee unions on Equal Protection and First Amendment grounds, and (3) enter the appropriate relief.
In addition to the pending dispositive motions, there are a number of other, related motions presently before the court. First, there are separate motions to intervene. Kristi LaCroix, Nathan Berish and Ricardo Cruz have moved to intervene as defendants in this action pursuant to Federal Rule of Civil Procedure 24(a)(1). (Dkt. #56.) LaCroix and Berish are public school teachers, and Cruz is employed by the Wisconsin Department of Employee Trust Funds. All three object to being compelled to pay union fees as a condition of employment and to being forced to be represented by two of the plaintiff unions. These proposed intervening defendants seek to argue that mandatory union membership and the payment of dues violate their First Amendment rights.
As for this intervention motion, the law is well-established that "employees can be required to contribute fair share fees to compensate unions for their representational activities." Sorrell v. Am. Fed'n of State, Cnty., Mun. Employees, 52 Fed. Appx. 285, 287 (7th Cir.2002) (citing Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 519, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991)). As importantly, plaintiffs' challenge to Act 10 does not seek to over-turn the fair share allotment of dues payments by dissenting employees, like the proposed intervening defendants. The proposed intervening defendants' unique First Amendment claim is, therefore, tangential to the subject matter of this lawsuit. See Keith v. Daley, 764 F.2d 1265, 1268 (7th
Also before the court is a motion to intervene as plaintiffs by Wisconsin Law Enforcement Association ("WLEA"), Tracy A. Fuller, Jill A. Buzick and Kathryn M. Rozmarynoski. (Dkt. # 63.) WLEA is an organization consisting of three local unions with general employees and public safety employees as members. Fuller, Buzick and Rozmarynoski are WLEA members. WLEA contends that it is the only state-wide bargaining unit that includes both categories of employees, and seeks to intervene because of this "unique" position. While WLEA's position may well be unique, it has not explained—nor does its proposed complaint suggest—how its claims are different than those of the plaintiffs, nor as importantly why plaintiffs will not adequately represent WLEA's interest. Accordingly, the court will also deny WLEA's motion to intervene.
Second, a number of parties seek leave to file amicus briefs. The policy of the Seventh Circuit, which this court will follow here, is to "grant permission to file an amicus brief only when (1) a party is not adequately represented (usually, is not represented at all); or (2) when the would-be amicus has a direct interest in another case, and the case in which he seeks permission to file an amicus curiae brief, may by operation of stare decisis or res judicata materially affect that interest; or (3) when the amicus has a unique perspective, or information, that can assist the court of appeals beyond what the parties are able to do." Nat'l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir.2000). While the court has denied LaCroix's, Berish's and Cruz's motions to intervene, the court will grant LaCroix's motion to file an amicus brief in opposition to plaintiffs' motion for temporary restraining order (dkt. # 45) and their collective motion to file an amicus brief in support of defendants' motion for judgment on the pleadings and in opposition to plaintiffs' motion for summary judgment (dkt. # 91). Arguably, at least, each has a unique perspective on the First Amendment implications of Act 10 which may be of some assistance to the court.
James Holmes, a self-described "resident citizen taxpayer of the State of Wisconsin," also seeks leave to file an amicus brief in opposition to plaintiffs' motion for a temporary restraining order. (Dkt. # 67.) Not only is that motion mooted by the court's dispositive ruling today, but the court finds the proposed amicus brief of no assistance and, therefore, Holmes' motion will be denied.
Two public interest groups—the Landmark Legal Foundation and the United States Justice Foundation—have also moved for leave to file amicus briefs in support of defendants' position. (Dkt. ## 98, 102.) Neither proposed brief materially advances defendants' arguments beyond what defendants themselves have presented. Moreover, the Seventh Circuit specifically warns against attempts by amicus curiae "to inject interest-group politics" into the federal courts. Nat'l Org. for Women, 223 F.3d at 617. Accordingly, the court will also deny Landmark Legal Foundation's and the United States Justice Foundation's respective motions for leave to file amicus briefs.
Plaintiffs are labor organizations, exclusive collective bargaining representatives of certain state and municipal employees, and organizations of affiliated labor organizations, within the meaning of Wis. Stat. §§ 111.70(1)(h), 111.81(12), and 111.96(13) (repealed by 2011 Wis. Act 10).
At Wisconsin Governor Scott Walker's request, Act 10 was introduced in a special session of the Legislature on February 14, 2011 as Special Session Senate Bill 11. The Governor publicly identified the bill as a "Budget Repair Bill." In press releases and public addresses, the Governor asserted that Act 10 was needed to balance the state budget and to give state and municipal governments the tools to manage their budgets during economic crisis.
Act 10 passed on March 11, 2011. A Wisconsin state circuit court initially enjoined the Act from being published or implemented, finding that the Act was adopted in violation of the Wisconsin Open Meetings Law, Wis. Stat. § 19.81. The injunction was lifted by the Wisconsin Supreme Court on June 14, 2011,
Under Act 10, "public safety employees" are defined as:
2011 Wis. Act 10 §§ 216, 272, attached as Ex. B to Affidavit of Timothy E. Hawks ("Hawks Aff.") (dkt. # 15-2).
The "public safety employee" classification does not correspond to any classification of employees in any previous Wisconsin law. By way of illustration, the Wisconsin Public Employee Trust Fund, Wis. Stat. § 40.02(48)(am), defines twenty-two job categories as "protective occupation employees." Of these twenty-two categories, only five—police officers, deputy sheriffs, fire fighters, county traffic police officers and village employees who perform both police protection and fire protection services—fall within the "public safety employee" category under MERA, and only two—troopers and motor vehicle inspectors in the State Patrol—are "public safety employees" under SELRA. In particular, "public safety employees" do not include police officers and fire fighters who work for the State, namely the Capitol Police, the UW Campus Police, and Fire/Crash Rescue Specialists.
Under the Act, "general employees" is simply a catch-all term for every other Wisconsin public-sector employee covered by MERA and SELRA who is not a "public safety employee." See, e.g., 2011 Wis. Act 10 §§ 214, 268 ("`General employee' means an employee who is not a public safety employee").
The unions challenge three provisions of
Second, once any collective bargaining agreement in effect at the time of Act 10's enactment has expired or terminated, unions representing general employees must submit to recertification each year. At least 51 percent of all general employees in the collective bargaining unit must vote to recertify—an absolute majority. 2011 Wis. Act 10 at §§ 242, 289, 9132, 9155. This annual recertification requirement differs from the prior law, which still applies to public safety employees, in at least two important respects. As an initial matter, no recertification elections are required at any time unless 30 percent of all general members vote for decertification. Even if an election is called for, a public safety union is recertified if it obtains 51 percent support from those members who actually vote—a simple majority. Wis. Stat. §§ 111.70(3)(a)4, (4)(d)5, 111.83(6); Wis. Admin. Code §§ ERC 11.02(3), 21.02.
Third, employers are prohibited from deducting union dues or fair-share fees from the payroll checks of general employees. 2011 Wis. Act 10 at §§ 227, 298 ("The employer may not deduct labor organization dues from a general employee's earnings."). This service continues for public safety employees and their unions. Id. at §§ 58, 213, 217, 225, 295, 299.
The two largest protective occupation bargaining units under MERA are the Milwaukee police officers and the Milwaukee fire fighters. The Milwaukee police officers are represented by the Milwaukee Police Association ("MPA") and the Milwaukee fire fighters are represented by Milwaukee Professional Fire Fighters, Local 215 ("Local 215"). Both MPA and Local 215 endorsed Governor Walker's 2010 gubernatorial campaign and participated in a television advertisement supporting him. The West Allis Professional Police Association and the Wisconsin Sheriffs and Deputy Sheriff's Association PAC also endorsed Governor Walker. All are classified as "public safety employees."
Wisconsin Law Enforcement Association ("WLEA") is the collective bargaining representative for state troopers, other employees of the Wisconsin State Patrol, and many other law enforcement personnel who work for the State, including the Capital
Correctional officers, probation and parole officers, conservation wardens and fire crash rescue specialists are also protective occupation employees under Wis. Stat. § 40.02, represented by plaintiff Wisconsin State Employees Union, AFSCME District Council 24 ("Council 24"), but are not classified as "public safety employees" under the Act. Special criminal investigation agents in the Wisconsin Department of Justice are also protective occupation employees, represented by plaintiff AFT-Wisconsin, AFL-CIO ("AFT-Wisconsin"), but are not classified as "public safety employees" under Act 10. Council 24 and AFT-Wisconsin, along with all of the other plaintiff unions, endorsed Governor Walker's opponent in the 2010 Wisconsin gubernatorial race.
All members of labor organizations that endorsed Governor Walker are classified as "public safety employees" under Act 10, as well as some who did not. For his part, the Governor stated in advance of its enactment that "public safety employees" were exempted from the collective bargaining changes under the Act in order to avoid the prospect of law enforcement and fire fighting employees striking, orchestrating work stoppages or engaging in other disruptive conduct in response to its enactment.
In addition to traditional collective bargaining activities, the plaintiff unions engage in lobbying and political activity, including legislative and issue advocacy, get-out-the-vote efforts, voter guides, candidate endorsements, ballot measure activity and member communications advocating the election or defeat of political candidates. Independent of losses due to the non-payment of dues by non-members and free-riding members of general employee unions, the loss of dues revenue caused by the Act's prohibition on voluntary payroll dues deductions by remaining members and the resources exerted in implementing alternative dues collection systems will limit those unions' ability to engage in political and other speech activities.
For example, plaintiff Wisconsin Education Association ("WEAC") provides reasonable estimates, without contradiction by defendants, that the loss of an automatic dues deduction option for its voluntary members will amount in an additional $375,000 reduction in the portion of its dues contributions set aside for certain types of political activity.
The parties agree that the court analyzes and reviews plaintiffs' Equal Protection claims under a rational basis standard. "The analysis breaks down into two questions: (1) whether the statute's purpose is reasonable, and (2) whether the statute rationally advances that purpose." Moran v. Beyer, 734 F.2d 1245, 1247 (7th Cir.1984) (finding a statute's purpose of maintaining marital harmony an "admirable goal," but finding that "prevent[ing] a married person from seeking a remedy which is available to an unmarried person" is not rationally related to that goal). "[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). "By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law." Id. at 632, 116 S.Ct. 1620.
There is no dispute that a state may bar its public employees from engaging in any form of collective bargaining. The only question is whether a state may restrict the collective bargaining rights to one category of public unions while allowing full rights to another category. The answer to that question is surely "yes," provided the classifications do not involve a suspect class and a rational basis exists for a state's line drawing. Here, there is no suspect class involved and plaintiffs have failed to present sufficient evidence that exempting public safety employees from the new, expansive restrictions on collective bargaining bears no rational relationship to a legitimate government interest in avoiding strikes of those employees.
As an initial matter, providing basic, emergency services is a core governmental function. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 575, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (describing "fire prevention, police protection, sanitation, and public health as typical of [the services] performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services" (internal citation and quotation marks omitted)). While plaintiffs point out that some police employees (e.g., the Capital Police and University of Wisconsin Police) and many other statutorily-recognized "protective occupation employees" were classified as general employees—arguably subjecting the public to increased risk of strikes, work stoppages or other disruptive actions in response to their loss of bargaining rights—this alone does not undermine the express purpose of the Act under a rational basis review. Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir.1997) ("Most of the plaintiffs' arguments criticize the statute for being either overinclusive or underinclusive; under rational basis review, however, the classification need not be the most narrowly tailored means available to achieve the desired end.").
Moreover, given the significant controversy surrounding the passage of Act 10, the court cannot wholly discount the defendants' expressed concerns: exempting public safety employees from severe restrictions on collective bargaining rights may rationally be related to a legitimate government interest of avoiding work stoppages by certain public employees performing core governmental services. In response, plaintiffs point out that strikes by these same employees is already prohibited by laws, but this alone does not undermine the State's rationale. As defendants note, public sector employees have gone on strike in the past despite statutory, anti-strike provisions. (Defs.' Mot. for J. on Pleadings Br. (dkt. # 76) 18.) Ironically enough, the fact that unions representing public safety employees generally supported the Governor in his gubernatorial campaign undermines plaintiffs' argument, at least to the extent that public safety unions may have felt even more wronged if Act 10 had stripped their collective bargaining rights along with other public unions, making more credible concerns that these unions would resort to illegal work stoppages or other disruptive activities.
While the court concludes that the carving out of public safety employees under the Act is rationally-related to a legitimate government interest in avoiding disruptions by those employees, at least facially, it cannot wholly discount evidence that the line-drawing between public safety employees and general employees was influenced (or perhaps even dictated) by whether the unions representing these employees supported Governor Walker's gubernatorial campaign. The Act's treatment of the Capital Police, who endorsed the Governor's opponent, in comparison to its treatment of state vehicle inspectors, who endorsed the Governor, best illustrates this suspect line-drawing.
In addition, as defendants demonstrated, the public employee classification is not limited solely to those unions who endorsed the Governor, though all unions that endorsed him during the 2010 gubernatorial election fall within the public safety classification. "In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest.
This is not an ordinary case in any number of respects, but it is ordinary in the sense that political favoritism is no grounds for heightened scrutiny under the Equal Protection clause. Indeed, cases finding the true reason for legislation is pure animus directed at a particular group—which cannot form the basis of a legitimate government interest—typically involve powerless groups, like "hippies" in Moreno or gay and lesbian citizens of Colorado in Romer. Act 10 may cripple unions representing general employees, but these unions and its members are certainly not a powerless class.
Even assuming the lack of an adequate rationale for distinguishing between public safety and general employee unions, the Equal Protection Clause does not require that a state institute changes wholesale. As discussed, the State of Wisconsin could have eliminated all rights of public employees to unionize. That it chose to implement changes piecemeal, for one class of public unions at this time, while neglecting others, is not a constitutional violation. "The prohibition of the Equal Protection Clause goes no further than invidious discrimination." Williamson v. Lee Optical of Okla., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955).
In defending Act 10, defendants focus principally on plaintiffs' challenge to selective restrictions on the collective bargaining rights of general employees, articulating no more than a surface-level connection between the purported governmental interest in avoiding strikes of public safety employees and the two other provisions challenged by plaintiffs—namely, the annual recertification requirement and the prohibition on dues withholding for general employees. Perhaps this is because the relationship between the interest of avoiding strikes and these other challenged provisions is substantially more tenuous. Act 10's exemption of public safety employees from the annual recertification requirement and the prohibition on dues withholding certainly has no obvious relationship to the government's supposed concern with disruptions by public safety employees.
Putting aside the dues withholding provision for the moment, plaintiffs have established, at least on this record, that requiring annual recertification by a labor union, much less by an absolute majority, is unprecedented.
Still, the court finds this onerous recertification provision would typically pass the admittedly low bar of rational basis review, but for defendants' failure to articulate and this court's inability to posit, how an annual, absolute majority vote by a wholly-voluntary union could rationally advance a reasonable purpose. Unlike the concern over work stoppages by public safety employees, restricted as to their bargaining rights, the requirement for annual proof of support by an absolute majority of union members applies only to general employee unions who are unable to compel any participation of any employee in its union activities, even the payment of a "fair share" fee. The only right granted this union is to bargain collectively on an adjustment in base pay. Even if this Governor and the Legislature had a reasonable concern that this remaining bargaining right might be abused, the concern is not rationally advanced by an unprecedented burden on a voluntary union's right to continue to exist from year to year. On the contrary, it seems irrational to impose this unique burden on a voluntary union with highly restrictive bargaining rights while maintaining far less burden on public safety unions in which involuntary membership and monetary support continue to be mandated by law. See State ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State Emp't Relations Board, 22 Ohio St.3d 1, 488 N.E.2d 181, 186 (1986) (finding provision which denied certain Dayton municipal employees collective bargaining rights to be "the very kind of arbitrary legislative enactment that is prohibited by the equal protection guarantees of both the Ohio and United States Constitution").
Even though plaintiffs do not assert a First Amendment claim with respect to this onerous, annual recertification requirement for unions representing general employees and their members, focusing instead on the difficulty and expense of securing recertification in the context of their Equal Protection claim, the court would be remiss not to at least note the likely burden the annual recertification process imposes on members' speech and association rights. Indeed, as it works a direct burden on general employee unions, its discriminatory application appears indefensible to a First Amendment challenge. See discussion infra Parts II.A, II.B. Even if not itself a direct violation of plaintiffs' First Amendment rights, the appearance of a partisan division of the two classes of unions is troubling. Id.
Just as removed from the State's only proffered reason for two classifications of public unions—risk of strikes by
The plaintiffs represent, and defendants do not dispute, that dues withdrawn from general employees' paychecks are used to fund speech. As such, there are two distinct sets of "speakers" here. First, union members engage in expressive activity by joining a union. Associations, including unions, provide an opportunity for "like-minded persons to pool their resources in furtherance of common . . . goals." Buckley v. Valeo, 424 U.S. 1, 23, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The Supreme Court has long-recognized that the First Amendment is implicated when dissenting public employees are required to fund union activities, including speech. See Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), criticized by Ellis v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, Express & Station Employees, 466 U.S. 435, 443, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984) (criticizing rebate program described in Abood). So, too, the payment of dues—some of which specifically fund political activity—constitutes an expressive activity. Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 359, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) (explaining that support of political activities through payroll deduction "can enhance the unions' exercise of First Amendment rights"); Cornelius v. NAACP Legal Defense Fund, Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) ("[A]n employee's contribution in response to a request for funds functions as a general expression of support for the recipient and its views.")
For this reason, the United States Supreme Court has repeatedly upheld the rights of dissenting members to withhold support of union activities unless germane to its role as exclusive bargaining representative—the fundamental right the Court has recognized as justifying mandatory unions. See Davenport v. Wash. Educ. Assoc., 551 U.S. 177, 185, 127 S.Ct. 2372, 168 L.Ed.2d 71 (2007); Chi. Teachers Union v. Hudson, 475 U.S. 292, 305, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986); Abood, 431 U.S. at 235-36, 97 S.Ct. 1782. The expressive nature of union membership is, if anything, heightened by the fact that general employees are no longer required under Act 10 to support any union activities—even core activities involving collective bargaining—making the deduction of union dues from the paychecks of general employees an entirely voluntary act.
Second, unions engage—indeed, one of their core functions is to engage—in speech. See Citizens United v. Fed. Election Comm'n, ___ U.S. ___, 130 S.Ct. 876,
Under Act 10, general employees may still pay voluntary dues and their unions may still engage in speech, including political speech. In that way, Act 10 does not prohibit general employee unions' or their members' speech, but it does bar the most efficient method by which these unions collect and their members pay dues. Defendants also concede that general employee unions have lost dues and will continue to lose dues because of this barrier to ease of payment.
While upholding a state's even-handed refusal to withhold dues, the Supreme Court acknowledged in Ysursa the value of the government's extension of automatic dues deductions by labeling the arrangement as "subsidiz[ing] the exercise of a fundamental right," "assist[ing] others in funding the expression of particular ideas," "enhance[ing] the unions' exercise of First Amendment rights," "aid[ing] the unions in their political activities," "enlisting the State in support of [their First Amendment] endeavor[s]," "facilitat[ing] speech," and "affirmatively assist[ing] . . . speech." 555 U.S. at 358-59, 362, 364, 129 S.Ct. 1093. Similarly, selectively prohibiting public employers from providing this service to general employees and their unions necessarily diminishes their speech—both general employees' ability to support their union financially, as well as the union's ability to fund its speech. See Citizens United, 130 S.Ct. at 898 (noting that less spending on speech "`necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached'" (quoting Buckley, 424 U.S. at 19, 96 S.Ct. 612)). Moreover, the fact that unions can create alternative means to collect dues does not ameliorate this restriction. Cf. Citizens United, 130 S.Ct. at 897 (finding speech of corporations hindered even though corporations could speak through the "burdensome alternative" of PACs).
The Supreme Court has also repeatedly recognized that a burden on speech, rather than an outright ban, is still subject to heightened scrutiny. See Sorrell v. IMS Health, Inc., ___ U.S. ___, 131 S.Ct. 2653, 2664, 180 L.Ed.2d 544 (2011) ("The Court has recognized that the `distinction between laws burdening and laws banning speech is but a matter of degree' and that the `Government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.'" (quoting United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000))); see also Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 152 (7th Cir.2011) ("Laws that burden political speech are subject to strict scrutiny[.]" (quoting Citizens United, 130 S.Ct. at 898)).
If plaintiffs' First Amendment claim falters, it is not on proof of an impact on their speech, but rather on proof that the State is affirmatively abridging that speech. In Ysursa, the Supreme Court considered a challenge by public employee unions to an Idaho statute banning public-employee payroll deductions for political activities on the basis that it violated their free speech rights. Citing Regan v. Taxation with Representation of Washington, 461 U.S. 540, 549, 103 S.Ct. 1997, 76
555 U.S. at 358, 129 S.Ct. 1093 (emphasis added). Applying rational basis review, the Court went on to conclude that a prohibition on payroll deductions for political activity was rationally related to the "State's interest in avoiding the reality or appearance of government favoritism or entanglement." Id. at 359, 129 S.Ct. 1093.
In so holding, the majority's opinion specifically addressed Justice Breyer's concern in dissent that "the ban on political payroll deductions may not be applied evenhandedly." Id. at 361 n. 3, 129 S.Ct. 1093. The Court noted that the ban "was not limited to any particular type of political contribution," and that it "applies to all organizations" and "to all employers." Id. (emphasis added).
Unlike the Idaho statute in Ysursa, the dues withholding ban at issue here applies to a subset of public employees. General employees and their unions are treated differently as speakers than public safety employees and their unions. Moreover, as Ysursa suggests, such speaker discrimination—independent of content or viewpoint discrimination—can form the basis of a valid First Amendment challenge. See, e.g., Sorrell, 131 S.Ct. at 2664 (applying strict scrutiny review to provision of statute which disfavors specific speakers, namely pharmaceutical manufacturers, and finding the provision unconstitutional); Citizens United, 130 S.Ct. at 898 (noting that in addition to "attempts to disfavor certain subjects or viewpoints," the First Amendment also prohibits "restrictions distinguishing among different speakers, allowing speech by some but not others") (citing First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 784, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)); Brown v. Alexander, 718 F.2d 1417, 1426 (6th Cir.1983) (finding eligibility requirement for dues withholding that an organization be "independent," meaning non-affiliated with another labor organization, "strikes at the heart of freedom
In response to this argument, defendants contend that plaintiffs have not demonstrated that general employees and their unions have different viewpoints than public safety employees and their unions. For example, defendants offer evidence to suggest that all public unions may share critical opinions of Act 10. But this does not mean that general employee unions do not have different political viewpoints than public safety employee unions. Defendants simply frame the inquiry too narrowly. The fact that none of the public employee unions falling into the general category endorsed Walker in the 2010 election and that all of the unions that endorsed Walker fall within the public safety category certainly suggests that unions representing general employees have different viewpoints than those of the unions representing public safety employees. Moreover, Supreme Court jurisprudence and the evidence of record strongly suggests that the exemption of those unions from Act 10's prohibition on automatic dues deductions enhances the ability of unions representing public safety employees to continue to support this Governor and his party.
Plaintiffs' First Amendment claim may be reasonably viewed as a challenge to the underinclusivity of Act 10's prohibition on dues withholding. Act 10 expressly exempts public safety employees from the prohibition, representing "a governmental `attempt to give one side of a debatable public question an advantage in expressing its views to the people.'" City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (quoting First Nat'l Bank of Boston, 435 U.S. at 785-86, 98 S.Ct. 1407). In Ladue, the Supreme Court held that a city ordinance which "permits commercial establishments, churches and nonprofit organizations to erect certain signs that are not allowed at residences" violated the free speech rights of those residents. Id. at 45, 114 S.Ct. 2038. The Court did not rest its holding on content or viewpoint discrimination. Indeed, the plaintiff's challenged sign—a 24-by 36-inch sign printed with the words, "Say No to War in the Persian Gulf, Call Congress Now"—would have been permissible if placed in the yard of a church or a non-profit organization concerned with pacifist issues.
As the Court explained in Ladue, "[e]xemptions from an otherwise legitimate regulation of a medium of speech may be noteworthy for a reason quite apart from the risks of viewpoint and content discrimination: They may diminish the credibility of the government's rationale for restricting speech in the first place." Id. at 52, 114 S.Ct. 2038 (citing Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 424-26, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993)); see also Citizens United, 130 S.Ct. at 906 ("The law's exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidiscrimination rationale. And the exemption results in a further, separate reason for finding this law invalid: Again by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views."). To ignore the potential for undermining the credibility of the government's rationale for supplementing the speech of public safety employees and their unions over general employees and their unions—where substantial evidence has been offered of their distinct view-points—would be a particular disservice to the First Amendment.
Recently, the District of Arizona enjoined a state statute (1) requiring all public employee unions that collect dues
The problem with this court's reliance on the District of Arizona's reasoning in United Food—as well as on the other First Amendment cases cited above—is that each involved an affirmative burden on the speaker, as opposed to a denial of a subsidy. For example, in United Food, the Arizona statute imposed certain reporting obligations upon public employee unions that collected dues using deductions that were not imposed on public safety unions and others. Plaintiffs understandably view the distinction here as unimportant, and it may well be as a practical matter, but this court cannot ignore the distinction drawn between impingements on speech and a government's refusal to subsidize it. Indeed, this is the very distinction upon which the Ysursa decision turned.
One could argue that any government subsidy to an individual entity or group may increase their voice—or amplify their speech, if you will—thereby favoring one group of speakers over others. In varying degrees, this may well be true. Developers who are awarded tax incremental financing are likely to "speak" in the public square on all sorts of issues, not to mention support politicians and political parties who support their views, including the need for tax incremental financing. So, too, do road builders who vie for government contracts, as do individuals who receive other subsidies from farm credits to food stamps (though it may require substantially more collective action to be heard). No one has argued that any of these subsidies—available only to members of a favored group—violates the First Amendment, or if they have, no court has found it so. For better or worse (and it may be both), this is how our political system works.
The question is whether the selective supplementation of the fundraising ability of a class of public unions is somehow different. There are strong arguments that it should be. First, unions themselves are inherently political, organizing to give collective voice for bargaining with governmental employers, as well as educating the public and advocating to politicians and the government, and participating in elections. Indeed, as discussed, a whole body of case law has grown up around the union's role as "speaker," though in the main to protect the dissenting members of a legally-sanctioned union shop from having their mandatory dues supplement the speech of the majority. See Communications Workers of Am. v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988).
While "the First Amendment certainly has application in the subsidy context," the government "may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake." Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998). The obvious exception for the government's wide berth in this area arises where the government "invidiously" discriminates based on viewpoint. Id.; see also Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307, 320-21 (6th Cir.1998) ("This is not to say that the government can place conditions on the receipt of state-created benefits that have the effect of dissuading people from exercising a constitutional right, even if the government has absolute discretion as to whether it will provide the benefit in the first instance."). This is why the Ysursa court left open the possibility for an "as-applied challenge" if a ban on direct political contributions were not enforced "evenhandedly." 555 U.S. at 361, 129 S.Ct. 1093. Absent such proof, however, it appears "the State need only demonstrate a rational basis to justify the ban on political payroll deductions." Ysursa, 555 U.S. at 359, 129 S.Ct. 1093 (citing Regan, 461 U.S. at 546-51, 103 S.Ct. 1997).
In defending against plaintiffs' First Amendment challenge, defendants exclusively argue that the prohibition on the withholding of union dues from paychecks of general employees does not implicate the First Amendment. Having rejected defendants' position, the court now must determine whether the State of Wisconsin has demonstrated "a rational basis to justify the ban on . . . payroll deductions" and, if so, whether plaintiffs have advanced evidence of invidious viewpoint discrimination.
Given its position that none is required, the State proffered no justification for the ban on dues deductions from paychecks.
The court is cognizant that the primary impact of an injunction requiring a return to automatic dues deductions for general employee unions will fall on already burdened local, county and state governmental entities. On the other hand, these unions and their members have been without the benefits of these deductions nine months and are, in this court's view at least, entitled to the same subsidy extended by the State of Wisconsin to other public employee unions and their members.
Consistent with the above, the court will also immediately enjoin Act 10's annual, mandatory recertification of general employee unions by an absolute majority of their members.
IT IS ORDERED that:
