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State court judge throws out Wisconsin Right to Work Law

State court judge throws out Wisconsin Right to Work Law

Finds State took Union’s property right in mandatory dues without just compensation.

When conservative Justice Rebecca Bradley won the Wisconsin Supreme Court election last Tuesday, we pointed out how important that court has been in upholding union reforms.

That may be tested again as Dane County Judge William Foust in Madison just threw out the state’s Right to Work law signed by Governor Walker a year ago.

The decision was under the “takings” clause of the Wisconsin Constitution. As in an eminent domain case, the court found that the union’s interest in compulsory dues payments was property, that the property was taken by the right to work law for a public purpose, but without just compensation.

The decision was announced by Attorney General Brad D. Schimel on the Vicki McKenna Show.

The Decision is embedded at the bottom of this post.

In the decision, the Judge found that the unions had a property interest in dues money which was violated:

Plaintiffs plainly theorize that services constitute property under the law and the Court agrees. The conclusion is logical. Labor is a commodity that can be bought and sold. A doctor, a telephone company, a mechanic—all would be shocked to find they do not own the services they perform. While each accepts the fact that they perform them in a regulated environment, that concession does not surrender their ownership of the services in the first place. Unions are no different; they have a legally protectable property interest in the services they perform for their members and non-members.

Perhaps the most straight forward property interest to identify is the union’s treasury. When members pay their dues and non-members their fair share fees, all would say the union is building a treasury that it holds as property. When it expends those funds to perform services, as it must, no one would dispute that that money is the union’s property. Plaintiffs will be obligated to spend treasury – their property — on services for which they cannot legally request compensation. This is enough to establish that unions do have a legally protectable property interest at stake.

The Judge then found that the “property” was taken by the government:

Plaintiffs emphasize the economic impact Act 1has and will have on their ability to carry out their function of fairly and adequately representing employees. The duty of air representation compels unions to provide at least some level of service to both union members and non-members; they have no other choice beyond ceasing to exist. After Act 1, these unions may no longer request payment whatsoever for those services….

There is, of course, no inherent right to static statutory laws. But Plaintiffs’ claim is different: their distinct, investment-backed expectation was that they would always have a right to collect fair-share payments from non-members as long as they were compelled by law to provide them services.

Finally, the Judge found that the union’s “property” was taken for a public use, but without just compensation:

It is well established that “public use” encompasses much more than physical use of private property by the public…. The fact that the property in this case transfers from one private party to another does not make it fail the public use prong. Echoing the United States Supreme Court, Wisconsin has recognized “[t]here is no rule or principle known to our system under which private property can betaken from one person and transferred to another, for the private use and benefit of such other person…” Stierle v. Rohmeyer, 218 Wis. 149,154 (Wis. 1935). Wisconsin takings cases, like Wise. Retired Teachers Association, have reflected this over the years; As such, Plaintiffs have proven the taking here occurred for the public use….

The Judge found that an exclusive right to bargain, without the actual payment of money to the union by the state, was not just compenation.

The Attorney General issued the following press statement:

Today, Dane County Circuit Court Judge William Faust struck down Wisconsin’s rightto-work law. Over half the States have enacted right-to-work laws and no unions have prevailed in their challenges to these laws.

Attorney General Brad Schimel released the following statement in response to Judge Faust’s decision: “We are extremely disappointed that the Dane County Circuit Court struck down Wisconsin’s right-to work law, but we are confident the law will be upheld on appeal.”

The notion that a union has a property right in forcing employees to pay union dues against their will is odd, at best. That “property” right only was created by legislation, and now that legislation has been changed. Such a right would, contrary to the Judge, amount to a right to a legislative freeze.


Order Throwing Out Wisconsin Right to Work Law – April 8 2016


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“Kloppenburg” sounds feculent, equine, and pedantic. I can just imagine a Clydesdale stepping down a street, and dropping a huge, steaming Kloppenburg on some poor guy’s head.

How does a circuit court judge have the authority to invalidate on a state-wide basis an enacted statute?

Asking for a friend. 🙂

–Andrew, @LawSelfDefense

    stevewhitemd in reply to Andrew Branca. | April 8, 2016 at 6:28 pm

    Legal proceedings start at the bottom and work their way up?

    Well Kudos to the judge and the union counsel for being creative. Totally wrong, but creative never the less. Sort of creativity that criminals use to justify their taking of property.

    So the union has a property interest in the dues? What about the workers? Don’t they have a property interest in those dues too?

      Everything for the state; nothing for the people.

      Citizen, you are guilty of wrongthink. Report for re-education immediately.

      JackRussellTerrierist in reply to EBL. | April 9, 2016 at 5:52 pm

      The reasoning in this decision is coming to your neighborhood soon in a suit for reparations.

    Dane County Judge William Foust will not run for reelection
    — Sep 9, 2015

Gee, I would have thought the WORKER held the property right to his or her wages, not a union.

Wonder who else has property rights to a worker’s wages….

The world turned upside down. The ruling defies common sense.

A property interest in the proceeds of another person’s labor.

Was Dred Scott cited as precedent?

I love this judge’s rationale. By his logic, all the methods of graft and corruption in politics and government cannot be stopped, because for the beneficiaries of such mechanisms, the expectation is that such methods will always be present. Hence, the instruments of corruption are properties, and depriving recipients of those schemes would be takings.

Also, what is with “announcing the decision” on a talk show? Surely that is not where the news was first released to the world? Hopefully, the AG simply discussed the decision on the talk show after the order was publicly distributed via normal court channels?

What an amazing pile of convoluted, inapposite nonsense!

“Fair-share fees” are “TAKEN” by the government when they’re left with the people who EARN them?

The guy has virtually every precept of law and economics turned on its head.

And he simply lies. Unions exist in Right-to-Work states every time they provide a service their members are willing to pay for. They are free to compete, instead of being protected and mandated by government. THAT results in EVERYBODY being benefited.

That garbage will not stand.

    I’m not sure why is was announced on a radio show, but I have to say as a long time resident of the Madison, Wisconsin area, Vicki McKenna is definitely one of the good guys, er gals.

    Valerie in reply to Ragspierre. | April 8, 2016 at 7:40 pm

    I worked at two separate chemical plants in Texas, a right-to-work state, that had unions. Right-to-work laws do not destroy union: they merely provide incentive to act in the interest of their members.

      Ragspierre in reply to Valerie. | April 8, 2016 at 8:19 pm

      Yep, as I said…where unions work in competition with NOT unions, they HAVE to provide something of value.

      Not the clumsy cudgel of compulsion via the state. REAL value. And they do for some workers. That’s called CHOICE!

        Eastwood Ravine in reply to Ragspierre. | April 9, 2016 at 12:09 am

        With sarcasm, right to choose, in this case whether or not to join a union, does not exist in the world of Leftists. You will me made to participate. You will be made to care.

        It certainly follows their logic: you didn’t build that!

Henry Hawkins | April 8, 2016 at 6:34 pm

NC has been right behind WI chronologically, having elected a conservative-leaning governor and a GOP controlled state congress for the first time since….. 923 AD, I think.

Anyway, the same thing is happening here. The GOP-led state congress passes bills that reverse ages-old Dem legislation, the GOP governor signs it into law, and the next lib-Dems file lawsuit after lawsuit to kill the GOP bills. Irritating, but due process. I suppose. Dammit.

    Henry Hawkins in reply to Henry Hawkins. | April 8, 2016 at 6:34 pm

    “and the next DAY lib-Dems file…”

    MaggotAtBroadAndWall in reply to Henry Hawkins. | April 9, 2016 at 9:37 am

    No rational person wants to deprive the left of it’s right to seek judicial relief when it believes it has been unjustly aggrieved. Just as no rational person expects a left wing judge to invent an insane legal theory to grant the relief sought.

    It does not sound like a good faith interpretation of the law. It’s a biased opinion using twisted logic to provide illegitimate relief to a politically favored group. Don’t just appeal it, cross your fingers, and hope for the best. Impeach the judge. Hold him accountable.

“A doctor, a telephone company, a mechanic—all would be shocked to find they do not own the services they perform”

They would probably also be shocked to learn that, according to this judge, they can force consumers to purchase their services, even if the consumers don’t want their services. But in the age of Obamacare, when unwilling Americans can be forced to purchase medical insurance coverages they don’t want or need, why should anyone be surprised?

Just another example of why we can’t afford to split ourselves up in internecine warfare while the world burns around us

Precisely why we need a Scalia type replacement on the USSC.

“In the decision, the Judge found that the unions had a property interest in dues money which was violated…”

These cretins have the nerve to invoke property rights when the very premise of their existence is to violate the property rights of taxpayers.

That is honestly one of the worst arguments I have ever heard.

Under this kind of reasoning, the guy who washes your car window with a dirty rag when you stop at a traffic light has a property interest in your money, because he performed a service, even though you never hired him to perform this service.

Most people who elect not to join a union aren’t looking for something for nothing. They’re affirmatively rejecting the union, in effect NOT hiring the union to perform a service.

It’s interesting that the court finds a property value in not getting paid for services the client never asked to be rendered. I hope that when this is overturned on appeal that whoever renders the opinion painfully drives home just how ridiculously flawed this justice’s thinking is.

To compel a man to furnish funds for the propagation of ideas he disbelieves and abhors is sinful and tyrannical.
– Thomas Jefferson

But that was so 1800s. It bears no relevance to the complexities of modern society, right, judge?

One thing’s for sure: If we don’t have a widespread public debate about this, very soon, we will reach a point at which we will wish we had – especially those at the lowest end of the economic spectrum, who (always) pay the highest price for this nonsense.

Under Progressivism, you are the property of your masters.

Insufficiently Sensitive | April 8, 2016 at 9:17 pm

Sounds like the judge got through the first year of law school, just enough to learn some jargon, but nothing of justice. Impeachment can’t come too soon.

What the state giveth the state can taketh away. Even if the state shouldn’t have given in the first place. But liberal judges always determine the verdict first and then rationalize how to get there.

If the unions had a property right to dues, then were their rights infringed for decades by the state before the legislation granted them the ability to collect dues?

How can something be a right if it is granted by simple legislation? And if it’s possible to grant rights by simple legislation, why isn’t it possible to revoke them by the same?

If we have learned any hard truth over the last 50 years, it is that liberal judges feel empowered to “interpret” the law in any twisted, imaginative fashion they choose to arrive at the result they desire. Since conservative jurists are far more adherent to the letter and spirit of the law and its limits on jurisprudence, this puts the law at a long term disadvantage since liberals will always end up with roughly half the seats, due to the shifting balance of political power to appoint and confirm judicial nominations, state and federal.

DouglasJBender | April 9, 2016 at 4:16 am

When labor becomes property, we all become slaves.

Gremlin1974 | April 9, 2016 at 4:27 am

So my question is how does the judge come to the conclusion that the state is “taking” anything? Yes, the union looses money but the state doesn’t end up with the money. That is what Just compensation is supposed to prevent, the ability of the state to take property for the state and keep it without just compensation. Basically to seize property without paying for it.

This judge is nothing more than a political hack. If he is an elected judge, I would immediately look into where his funding has been coming from, and I bet it rhymes with Unions.

Political Observer | April 9, 2016 at 8:31 am

I agree with those who see this decision as nothing more than a political statement.

Just a couple of observations. First this judge was elected in Dane county home of the people’s republic of Madison. Any hope of a removal by the voters is fantasy since he reflects the predominant political thought of these voters.

The union’s argument that they are compelled to represent all workers is an outright lie. Federal law allows unions to choose to represent only their membership. However the unions have chosen to represent all of the workers for obvious political reasons. Thus by their choice they have agreed to do so whether they are compensated or not (rather magnanimous of them).

One last point – the challenges to any state law are required by Wisconsin statute to be filled in the Dane County Circuit Court. Given the long standing leftist bent of these voters, I don’t understand why the Republican legislature has not changed this law and inserted some sort of random process where challenges to a state law can be assigned to any state circuit court. This would remove from the Madison voters the extraordinary power of shaping our legislative process to their ends.

Would this ruling be based on the rational that the unions have the right to money that other people make?

Can the state charge the unions fees for collecting the dues?

Governments have the right to compel citizens to pay taxes for services citizens may not wish to pay for, but, unions are not governments.

Perhaps this judge thinks they are?

In return for providing representation services to all in a bargaining unit, unions do get something. They get to bargain for all the members of the unit, including those who voted against union representation or don’t want the union. These employees can be bound to collective bargaining agreements. It is the same as when you vote against a congressman who wins the election. He still has to provide constituent services to those who voted against him. He is not entitled to campaign contributions. Neither are unions entitled to dues. This decision is very unlikely to survive appeal and may even be quickly overturned.

How about just aboloshing government unions, or at least decetifying them? Do unions have a “right” to a government monopoly on their services?

Maybe I’m misreading the opinion, but the “property” that the judge says has been taken is the unions’ services and money spent in representing non-members, not the non-members’ payments to the unions.

But, if I’m right about that, isn’t the taking the result of the law requiring (as the judge says) unions to represent non-members, NOT the result of the right-to-work law? In essence, the judge is saying that non-member payments WERE just compensation for that taking, but how can he say that such payments MUST BE the form just compensation takes?

    m87 in reply to m87. | April 13, 2016 at 3:57 am

    And another thing (assuming my reading is correct)–who thinks to themselves, “Hey, my services are being compelled against my will! That sounds like a Takings Clause issue!”

    To me, the bizarre theory underlying the unions’ case just emphasizes how baseless their case really is.