Bryna Godar on an Act 10 Reversal and the Politics of Appeal

Frederica Freyberg:
The Madison Teachers Union is demanding to bargain with the district after a Dane County judge this week restored collective bargaining rights for most Wisconsin public employees that were effectively eliminated under former Governor Scott Walker’s Act 10. But how long will that window of bargaining opportunity last before a higher court stays the Dane County order as it moves along the appeals process? We turn to Bryna Godar, a staff attorney at the State Democracy Research Initiative at the UW Law School. Thanks very much for being here.

Bryna Godar:
Thanks for having me.

Frederica Freyberg:
So as to that question, the Republican Legislature already appealed this Dane County order. How long might this window last for unions hoping to exercise their bargaining rights under the Dane County order?

Bryna Godar:
So it could be pretty short. The Legislature is almost certainly going to ask the Court of Appeals for a stay of the lower court’s decision, meaning it would be on pause and wouldn’t go into effect yet. And then if that happens, it could be months before we actually get a final resolution in the case or before that stay is lifted. And that would likely require the Wisconsin Supreme Court to weigh in eventually.

Frederica Freyberg:
Yeah, I want to talk about that in a moment but does the Legislature have a good basis for appeal in your mind?

Bryna Godar:
So I think it’s a tough case. I think it raises some complicated legal issues. And so there are strong arguments on either side. So they certainly have a basis to appeal the decision.

Frederica Freyberg:
So as to the case, the Dane County ruling focused on the separate treatment of public safety employees under Act 10. What was the legal argument supporting overturning the law on the basis of this separate treatment?

Bryna Godar:
So this case really focused in on how public safety employees were defined. And the court said that it was fine for the Legislature to distinguish between public safety employees and general employees, so could distinguish between police officers and firefighters and the like and other employees. But the way that it had drawn those lines was not rational or reasonable. And so what it really looked at was things like that group included municipal firefighters, municipal police officers, state motor vehicle inspectors, state traffic patrol but didn’t include certain groups like UW Police, Capitol Police or conservation wardens who you might expect to be in that group. And so what the court really looked at was, was there a way that you could sort of define that public safety group in a way that was rational or reasonable, and it didn’t find a clear reason on which to draw those lines.

Frederica Freyberg:
Well, even from the outset of the signing of this law, it always seemed a little like, why them but not them?

Bryna Godar:
Yeah. And that’s what this case came down to and because he determined that you couldn’t draw that line in a rational way, he decided you needed to strike down that distinction. And the result of that was that the general employees category now has the same collective bargaining rights as those who were previously carved out under the public safety category.

Frederica Freyberg:
So how likely is it that other unions, like the Madison Teachers Union, would scramble to reinstate collective bargaining following the ruling?

Bryna Godar:
So I think it depends sort of on how long the stay lasts, on sort of strategically, how much it makes sense to mobilize those resources. But I do think it’s worth noting that unions have still, excuse me, been able to exist and do some limited collective bargaining. And so they can still do organizing preemptively, even if this decision is stayed to sort of prepare for those upcoming negotiations if this decision is ultimately upheld.

Frederica Freyberg:
So as we’ve discussed, the likely path for this is that it lands in the Wisconsin Supreme Court. The balance of that court right now is a liberal majority. We know we are coming into a spring election. How dicey is that for both sides in this case?

Bryna Godar:
I think the biggest thing is that it just is going to mean that Act 10 is a really salient issue in the upcoming election. So it’s highly unlikely that the state Supreme Court will decide the issue before the April election. But they very well could decide it before August, which is when that next justice would be taking their seat on the court.

Frederica Freyberg:
So do you think it becomes a salient issue to the extent that it kind of turns into a referendum on Act 10?

Bryna Godar:
Potentially. I think Act 10 has really been off the radar for a lot of people for quite a while now, and so I think it might become more of a referendum on it this time around. I think in addition to some of the other issues that we already saw in the prior election, like abortion.

Frederica Freyberg:
As a matter of law, how surprising was it that this lawsuit actually stuck when so many against Act 10 failed?

Bryna Godar:
Yeah. So I think it definitely is something that people kind of weren’t paying attention to anymore and didn’t necessarily expect to see this time around. The Legislature was making those arguments that essentially the — it was too late to bring these claims and that they should have been brought in prior lawsuits. But the court rejected those arguments, and it really looked at the fact that this case did bring distinct legal claims from those prior cases, and that they weren’t the same plaintiffs as those prior cases.

Frederica Freyberg:
All right. Well, we obviously all will be watching this. Bryna Godar, thanks very much.

Bryna Godar:
Thank you.