By Alexandria Staubach Earlier this month, Dane County Circuit Judge Jacob Frost declared part of Act 10—the 2011 statute that gutted collective bargaining rights—unconstitutional, finding that the law’s application to some public safety groups but not others had no rational explanation and therefore violates equal protection rights. ![]() Frost found the provisions of the act related to collective bargaining modification void. (The full order is here.) Equal protection arguments arise under federal and state constitutions when similar people are treated differently. Act 10 significantly diminished collective bargaining rights for everyone but select government employees deemed “protective occupation participants.” This classification included government workers like police but excluded some similar groups like the Capitol police. Whether the statute violates equal protection hinges on whether the state had a “rational basis” for determining who fell into the protective occupation classification, Frost said. Act 10 did not provide a definition for “protective occupation participants.” Instead, it relied on another Wisconsin statute that defined “protective occupation participants” who receive state benefits. Under that statute, there are 22 groups in the protective occupation classification. The groups “cover a variety of categories of work—law enforcement, fire fighters, and, oddly, motor vehicle inspectors,” Frost noted. The Legislature chose only seven of those 22 groups for protection in Act 10. Frost found that the Legislature failed to explain why just those seven groups of workers would essentially be exempt from the restrictions on collective bargaining implemented under Act 10. “No explanation presented to or thought of by the Court can explain why those 7 groups are in but the other public safety type groups are put in the general employee category,” Frost said. “(T)his is the purpose of rational basis review—to ensure there is an explanation that makes rational sense as to why a group is treated differently and who is in the group,” he wrote. “(T)he Legislature did not define the bounds of who is in the public safety group with words or explanation. It only did so by naming the specific employees put into the public safety group. Because the Court cannot come up with any policy that explains why these 7 groups of employees are included but other similar employees are excluded, the classification lacks a rational basis,” Frost said. Frost said the Legislature “absolutely has authority to define the public safety group and set the bounds of who is included as long as there is a rationale for it and the bounds apply fairly to all who fall within them.” A group of labor organizations filed the equal protection lawsuit in Dane County in November 2023. The defendants—state agencies and officials who oversee Act 10 enforcement—and the intervening Legislature asked Frost to dismiss the case on the grounds that the issues raised were decided in two prior cases, which deemed the law constitutional; implications for the state’s budget and the amount of time elapsed since Act 10’s enactment prejudice the state; and the law does not violate equal protection. Federal courts and the Wisconsin Supreme Court have previously found the law constitutional, but Frost said those cases and arguments were different. A case filed in federal court in 2013 by a (mostly) different group of labor organizations sought to invalidate Act 10 for violating the equal protection clause of the U.S. Constitution. Frost found that the plaintiffs before him challenged Act 10 under the Wisconsin Constitution. “(T)hough the state and federal arguments surely have similarities they are not the same,” he said. Frost concluded that the prior federal case was not binding on Wisconsin courts because “Wisconsin’s Supreme Court has developed a 5 factor test to apply to certain equal protection challenges,” which the federal appeals court “never discussed or applied.” In 2014, labor organizations again unsuccessfully challenged Act 10, but in state court. They argued that Act 10 violated equal protection under the Wisconsin Constitution because it treats employees who chose union representation differently from those who chose not to be represented by a union. Frost wrote that “this is entirely different” from the question of whether Act 10’s protective occupation classification violates equal protection. Frost disposed of the prejudice argument by saying that the Legislature had failed to demonstrate any prejudice other than the ordinary inconvenience and disruption of litigation. “Those costs also would exist no matter when the law[suit] was brought,” he wrote. “(S)imilarly, if Act 10 were overturned, the effect on budgets would have occurred right after the law’s passing the same as it does now.” The defendants are likely to appeal Frost’s decision once it has been fully litigated, and it is likely to be another case that ends up before the Wisconsin Supreme Court. Recently, a host of cases in the Supreme Court have sought to overturn Wisconsin law on controversial topics—from the 2023 case that led to redistricting, to this month’s decision by the Wisconsin Supreme Court that absentee ballot boxes are allowed, to a case on whether the state constitution protects a right to abortion.
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