Democratic AG says he'll likely defend Act 10 as GOP lawmakers and teacher try to intervene in case

Milwaukee Journal Sentinel

Attorney General Josh Kaul speaks about efforts to combat opiate abuse. At rear from left are, Katie Sanders of Safe & Sound; Jon Richards, coalition director of “Take Back My Meds MKE”; and Ald. Russell Stamper.

MADISON - The renewed legal fight over Act 10 is heating up.

Democratic Attorney General Josh Kaul says he's likely to defend the 2011 law that curbed collective bargaining for public workers in Wisconsin despite his personal opposition to it.

GOP legislative leaders want to join the case at taxpayer expense.

And now a conservative legal group is helping a teacher try to intervene in the case.

Act 10 has survived repeated rounds of legal challenges, but this month two chapters of a union that represents equipment operators renewed the legal fight.

They argue a recent U.S. Supreme Court decision that went against unions includes a silver lining that should lead courts to strike down parts of Act 10.

Act 10 barred unions for most public workers from negotiating over anything but wages and capped any raises at the rate of inflation. Those unions can't cut deals on their schedules, working conditions or any other issues.

In addition, the law barred the unions from charging fees to nonmembers. And it ended the unions' ability to have their dues automatically taken out of members' paychecks.

Under Act 10, unions must hold annual elections to remain intact. They must get at least 51% support from all employees in their work unit — including those who don't vote.

In their lawsuit, the two chapters of the International Union of Operating Engineers argue all those provisions are unconstitutional under the First Amendment and should be thrown out.

They note that Act 10, like other state and federal labor laws, require unions to provide their benefits to all workers in a work unit, including those who don't pay for the union's services.

That's not fair, the union argues. To make its case, it cites a 2018 Supreme Court ruling that concluded public workers cannot be compelled to pay union fees if they don't want to belong to a labor organization.

"By that same reasoning, it also violates the rights of the union and its members to require them to use their money to speak on behalf of the non-member," union attorney Mark Sweet wrote in the lawsuit. "Hence, the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. Similarly, freedom of association plainly presupposes a freedom not to associate."

The case is being heard by U.S. District Judge Lynn Adelman in Milwaukee.

In an interview, Kaul indicated he would defend Act 10.

"We’ll take the same approach to that one as we do in any case, which is we’ll defend it as long as there is a reasonably defensible basis and I fully anticipate that we will defend the statute in that case," he said.

He's taking that stance as Republican lawmakers gear up for an attempt to intervene in the case. It is the latest in a string of cases GOP lawmakers have tried to join in recent months, often because they say they don't trust Kaul.

From 1990 to early 2018, lawmakers attempted to intervene in one case, according to the nonpartisan Legislative Reference Bureau. Since then, they've tried to do it five times.

Kaul said lawmakers have the right to try to intervene in cases but suggested they're overdoing it.

"We had an election for attorney general, which is the state’s legal representative, and the voters spoke on that," Kaul said. "And by trying to get involved in case after case, one could draw the conclusion that the Legislature is rejecting the will of the voters and trying to substitute its legal judgment for that of the state’s representative."

In a statement this week, Senate Majority Leader Scott Fitzgerald of Juneau said Republicans "can't sit idly by" while a law they have championed is challenged.

GOP lawmakers have had mixed results with their recent attempts to get involved in cases. They succeeded in joining a lawsuit last year over the state's election maps, but a federal judge last month declined to let them participate in a lawsuit over Wisconsin's abortion laws because Kaul is already defending them.

Lawmakers have retained the law firms Troutman Sanders and Husch Blackwell for the work on the Act 10 case. Taxpayers will be billed $500 an hour for the Troutman Sanders attorneys and $215 to $820 an hour for the Husch Blackwell attorneys.

Separately, Pleasant Prairie teacher Kristi Koschkee is trying to intervene in the case with the help of the Wisconsin Institute for Law & Liberty. Koschkee does not belong to her local teachers union and does not want to subsidize it because she disagrees with it, according to a court document filed Friday.

"The public unions are once again trying to use the courts to handcuff all teachers, union or not, to collective bargaining agreements," Koschkee said in a statement. "If the unions are successful, it will hurt my ability to do what I love: teach students."

It's not the first time Koschkee has been involved in a politically charged case. She is the lead plaintiff in a case before the state Supreme Court over how the state schools superintendent writes education rules.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.