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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