UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN

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					     Case: 3:11-cv-00428-wmc Document #: 40       Filed: 06/27/11 Page 1 of 45



                       UNITED STATES DISTRICT COURT
                       WESTERN DISTRICT OF WISCONSIN


WISCONSIN EDUCATION ASSOCIATION
COUNCIL, et al.,

                  Plaintiffs,

      v.                                            3:11-cv-00428-wmc

SCOTT WALKER, Governor of the State
of Wisconsin, et al.,

                  Defendants.


   DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR A TEMPORARY
        RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION


                                      MICHAEL BEST & FRIEDRICH LLP
                                      Eric M. McLeod
                                      Joseph Louis Olson
                                      Michael P. Screnock
                                      One South Pinckney Street, Suite 700
                                      Post Office Box 1806
                                      Madison, WI 53701-1806
                                      Co-Counsel for Defendants Scott Walker
                                      Governor of the State of Wisconsin, Michael
                                      Huebsch, Secretary, Department of Administration
                                      and Gregory Gracz, Director, Office of State
                                      Employee Relations

                                      J.B. VAN HOLLEN
                                      Attorney General
                                      David C. Rice
                                      Assistant Attorney General
                                      Steven C. Kilpatrick
                                      Assistant Attorney General
                                      Wisconsin Department of Justice
                                      Post Office Box 7857
                                      Madison, WI 53707-7857
                                      Co-Counsel for all Defendants
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                                                   TABLE OF CONTENTS

                                                                                                                                         Page


INTRODUCTION ......................................................................................................................... 1
ARGUMENT................................................................................................................................. 2
          I.         PRELIMINARY INJUNCTION STANDARD..................................................... 4
          II.        PLAINTIFFS HAVE NO PROBABILITY OF SUCCESS ON THE
                     MERITS OF THEIR EQUAL PROTECTION CLAIM........................................ 6
                     A.         The Level Of Deference This Court Must Afford To The State’s
                                Choices Demonstrates That Preliminary Injunctive Relief Is Not
                                Appropriate ................................................................................................ 6
                     B.         There Is A Rational Basis For The Differing Treatment Of General
                                Employees And Public Safety Employees................................................. 8
                                1.         The rational basis ........................................................................... 8
                                2.         The avoidance of a work stoppage by public safety
                                           employees is a legitimate, recognized rational basis ................... 12
                     C.         Plaintiffs’ Attempt To Reduce Act 10 To Crass Political Payback
                                Fails.......................................................................................................... 17
          III.       PLAINTIFFS HAVE NO PROBABILITY OF SUCCESS ON THE
                     MERITS OF THEIR FIRST AMENDMENT CLAIM, AS THAT CLAIM
                     IS WITHOUT MERIT......................................................................................... 19
                     A.         Under Wisconsin Law, Payroll Deductions For The Payment Of
                                Union Dues Do Not Implicate First Amendment Activities.................... 20
                     B.         Even If The Direct Payment Of Union Dues Amounted To
                                Government Support For “Core Political Speech,” Plaintiffs Have
                                Not Stated A Claim For Viewpoint Discrimination Under The First
                                Amendment.............................................................................................. 25
          IV.        PLAINTIFFS HAVE FAILED TO ESTABLISH THAT THEY LACK
                     AN ADEQUATE REMEDY AT LAW............................................................... 26
          V.         PLAINTIFFS MISSTATE THE NATURE OF THEIR ALLEGED
                     IRREPARABLE HARM ..................................................................................... 27
                     A.         Much Of The Alleged Harm Plaintiffs Assert Is Offset By
                                Commensurate Benefits To Plaintiffs’ Members .................................... 28
                     B.         The Loss Of Collective Bargaining Privileges Does Not Constitute
                                Per Se Irreparable Harm........................................................................... 30
                     C.         The Alleged Constitutional Violations Do Not Constitute Per Se
                                Irreparable Harm...................................................................................... 31
                     D.         Plaintiffs Fail To Properly Support Their Claims Of Potential
                                Bankruptcy............................................................................................... 32

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                                                  TABLE OF CONTENTS
                                                       (continued)
                                                                                                                                  Page


          VI.        THE STATE AND THE PUBLIC INTEREST WILL SUFFER GREAT
                     IRREPARABLE HARM BY THE ISSUANCE OF A PRELIMINARY
                     INJUNCTION...................................................................................................... 32
          VII.       PLAINTIFFS SEEK TO ALTER THE STATUS QUO, NOT MAINTAIN
                     IT, BY ASKING FOR A REMEDY THAT WILL RESULT IN A
                     COMPLETELY NEW SET OF COLLECTIVE BARGAINING
                     STATUTES.......................................................................................................... 35
          VIII.      THE BALANCING OF INTERESTS FAVORS THE STATE .......................... 37
CONCLUSION............................................................................................................................ 38




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                                               TABLE OF AUTHORITIES



                                                                                                                              Page(s)
CASES

American Family Mut. Ins. Co. v. Department of Revenue,
  222 Wis. 2d 650, 586 N.W.2d 872 (1998)...............................................................................23

American Fed'n of Gov’t Employees, AFL-CIO v. Loy,
  281 F. Supp. 2d 59 (D.D.C. 2003) ...........................................................................................15

American Hosp. Assoc. v. Harris,
  625 F.2d 1328 (7th Cir. 1980) ...................................................................................................6

Bloedorn v. Francisco Foods, Inc.,
   276 F.3d 270 (7th Cir. 2001) ....................................................................................................31

Board of Regents v. Wisconsin Personnel Comm'n,
   103 Wis. 2d 545, 309 N.W.2d 366 (Ct. App. 1981) ..................................................................2

Boucher v. School Bd. of Greenfield,
   134 F.3d 821 (7th Cir. 1998) ......................................................................................................4

Cavanaugh v. Looney,
   248 U.S. 453 (1919).................................................................................................................33

Chicago Bd. of Realtors, Inc. v. City of Chicago,
   819 F.2d 732 (7th Cir. 1987) .....................................................................................................8

Citizens Against Rent Control v. City of Berkeley,
    454 U.S. 290 (1981).................................................................................................................24

Clune v. Publishers' Ass'n of New York City,
   214 F. Supp. 520 (S.D.N.Y. 1963).............................................................................................5

County of Kenosha v. C&S Management, Inc.,
   223 Wis. 2d 373, 588 N.W.2d 236 (1999)...............................................................................14

County of Sonoma v. Superior Court,
   173 Cal. App. 4th 332 (Cal. App. 2009).............................................................................15, 16

Dore & Assocs. Contracting, Inc. v. American Druggists’ Ins. Co.,
   54 B.R. 353 (Bankr. W.D. Wis. 1985).......................................................................................6

Equal Emp. Opp. Comm’n v. City of Janesville,
   630 F.2d 1254 (7th Cir. 1980) ..................................................................................................35

Faheem-El v. Klincar,
   841 F.2d 712 (7th Cir. 1988) ...........................................................................................5, 8, 37



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                                              TABLE OF AUTHORITIES

Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the USA, Inc.,
   549 F.3d 1079 (7th Cir. 2008) ....................................................................................4, 5, 29, 30

Great Lakes Higher Educ. Corp. v. Cavazos,
   698 F. Supp. 1464 (W.D. Wis. 1988) ......................................................................................31

Hearne v. Bd. of Educ.,
   185 F.3d 770 (7th Cir. 1999) ...................................................................................................18

Heiar v. Crawford County,
   746 F.2d 1190 (7th Cir. 1984) .................................................................................................27

Heller v. Doe,
   509 U.S. 312, 113 S. Ct. 2637 (1993)..............................................................................1, 7, 11

Hortonville Educ. Ass'n v. Hortonville Joint Sch. Dist. No. 1,
   66 Wis. 2d 469, 225 N.W.2d 658 (1975)...........................................................................12, 14

Instant Air Freight Co. v. C.F. Air Freight, Inc.,
    882 F.2d 797 (3d Cir. 1989).....................................................................................................32

Jessen v. Village of Lyndon Station,
    519 F. Supp. 1183 (W.D. Wis. 1981) ....................................................................................6, 8

Johnson v. Rancho Santiago Community College Dist.,
   623 F.3d 1011 (9th Cir. 2010) ..................................................................................................12

Joint Sch. Dist. No. 1 v. Wis. Rapids Educ. Ass'n,
    70 Wis. 2d 292, 234 N.W.2d 289 (1975) (Wisconsin Rapids teachers went on strike
    despite prohibition of MERA) ...........................................................................................12, 13

Jordan v. Wolke,
   593 F.2d 772 (7th Cir.1978) ......................................................................................................5

Lamb’s Chapel v. Center Moriches Union Free Sch. Dist.,
   508 U.S. 384 (1993).................................................................................................................25

Lasco v. Northern,
   733 F.2d 477 (7th Cir. 1984) ......................................................................................................4

Lineback v. Spurlino Materials, LLC,
   546 F.3d 491 (7th Cir. 2008) ....................................................................................................31

Margiotta v. Kaye,
  283 F. Supp. 2d 857 (E.D.N.Y. 2003) ...............................................................................11, 14

Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
  571 F.3d 873 (9th Cir. 2009) .....................................................................................................5



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                                               TABLE OF AUTHORITIES

Members of City Council v. Taxpayers for Vincent,
  466 U.S. 789 (1984).................................................................................................................26

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
    429 U.S. 274 (1977).................................................................................................................27

New Motor Vehicle Bd. v. Orrin W. Fox Co.,
   434 U.S. 1345 (1977)...............................................................................................................33

Newlife Homecare, Inc. v. Express Scripts, Inc.,
   No. 07cv761, 2007 U.S. Dist. LEXIS 33031 (M.D. Penn. May 4, 2007) ...............................32

NLRB v. Electro-Voice, Inc.,
  83 F.3d 1559 (7th Cir. 1996) ..............................................................................................30, 31

Roland Mach. Co. v. Dresser Indus., Inc.,
   749 F.2d 380 (7th Cir. 1984) ......................................................................................................4

Rosenberger v. Rector & Visitors of Univ. of Va.,
   515 U.S. 819 (1995)...........................................................................................................25, 26

Squillacote v. Local 248, Meat & Allied Food Workers,
   390 F. Supp. 1180 (E.D. Wis. 1975) .........................................................................................6

State Dept. of Admin. v. Wis. Employment Relations Comm'n,
    90 Wis. 2d 426, 280 N.W.2d 150 (1979)...................................................................................2

State ex rel. Harvey v. Morgan,
    30 Wis. 2d 1, 139 N.W.2d 585 (1966).....................................................................................23

State v. King,
    82 Wis. 2d 124, 262 N.W.2d 80 (1978).............................................................................13, 14

State v. Langlade County Creamery Co.,
    193 Wis. 113, 212 N.W.2d 664 (1927)....................................................................................23

Turner Broad. Sys., Inc. v. FCC,
   507 U.S. 1301 (1993).........................................................................................................33, 37

U.S. Dep't of Agric. v. Moreno,
   413 U.S. 528 (1973).................................................................................................................16

Wroblewski v. City of Washburn,
   965 F.2d 452 (7th Cir. 1992) .....................................................................................................8

Ysursa v. Pocatello Educ. Ass’n,
   555 U.S. 353, 129 S. Ct. 1093 (2009)................................................................................23, 24




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                                             TABLE OF AUTHORITIES

Zehner v. Trigg,
   133 F.3d 459 (7th Cir. 1997) ...................................................................................................11




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                                       INTRODUCTION

       Plaintiffs have invited this Court to undertake a drastic and extraordinary course of

action. They ask this Court to enjoin 2011 Wisconsin Act 10 ("Act 10"), a law passed by the

Wisconsin legislature and signed by the Governor. In support of this extreme request, Plaintiffs

offer a baseless Equal Protection claim and an imagined First Amendment claim. Plaintiffs’

claims are without merit. Yet even if those claims had any merit, there are no grounds for

temporary injunctive relief because the harm to Plaintiffs, if any, is greatly outweighed by the

harm to the State, municipalities and the people of Wisconsin.

       It is foundational law that enactments of the legislature are entitled to a strong

presumption of validity. Additionally, the rational basis standard which applies to Plaintiffs’

Equal Protection claim places upon Plaintiffs “[t]he burden … to negative every conceivable

basis which might support [Act 10], whether or not the basis has a foundation in the record” and

instructs this Court to uphold Act 10 “if there is any reasonably conceivable state of facts that

could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320-21, 113 S.

Ct. 2637 (1993). This is true even if that state of facts is the product of “speculation unsupported

by evidence or empirical data.” Id.

       Plaintiffs simply cannot carry their burden. As detailed below, the classification made by

Act 10 is rationally related to a legitimate governmental interest - the prevention of the

disruption of essential governmental services.

       Perhaps realizing that they cannot meet their burden on their Equal Protection claim,

Plaintiffs have attempted to manufacture a claim alleging “viewpoint discrimination” under the

First Amendment. This claim is premised on the same classification that forms the basis for

Plaintiffs’ Equal Protection claim.     Plaintiffs’ argument, however, ignores Wisconsin law,
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misunderstands the doctrine of viewpoint discrimination and rests on a novel theory that, if

accepted, would require this Court to declare the very remedy Plaintiffs seek unconstitutional.

       This Court should reject Plaintiffs’ remarkable invitation and deny their Motion for

Temporary Restraining Order and/or Preliminary Injunction.

                                           ARGUMENT

       Plaintiffs have the burden and they have clearly failed to satisfy the requirements for a

temporary restraining order or preliminary injunction. They have no reasonable likelihood of

success on the merits of their Equal Protection or First Amendment claims. Yet, even if they had

some small chance of succeeding on the merits, Plaintiffs have failed to show they lack an

adequate remedy at law or that they will suffer irreparable harm in the absence of injunctive

relief. Finally, the remedy they seek in the present motion will result in greater harm to the State

and to the public.

       As a preliminary matter, it should be noted that, in their briefs, Plaintiffs continually refer

to the “right” of state and municipal employees to collectively bargain. Despite this effort to

frame the issues in a more favorable light, it is quite clear that collective bargaining by state and

municipal employees is not a fundamental right. Rather, it is a privilege granted by the State in

its sole discretion and at its convenience. See, e.g., Board of Regents v. Wisconsin Personnel

Comm'n, 103 Wis. 2d 545, 556, 309 N.W.2d 366 (Ct. App. 1981) (“[t]he right of state employees

to bargain collectively with the state is an act of legislative grace.”); see also State Dept. of

Admin. v. Wis. Employment Relations Comm'n, 90 Wis. 2d 426, 430, 280 N.W.2d 150 (1979)

(“There is no constitutional right of state employees to bargain collectively”). The Court should

be mindful of this distinction as it weighs Plaintiffs’ claims.

       This distinction is important not only because it underscores the fact that Plaintiffs’ Equal

Protection challenge to Act 10 must be evaluated under the lowest “rational basis” test, but also


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because it addresses Plaintiffs’ suggestion that the Defendants bear some greater burden in

justifying changes to a decades-old statutory collective bargaining scheme for public employees.

There is no legal significance to the fact that many of the statutes amended by Act 10 have been

on the books for “half a century.” (Plaintiffs’ Brief in Support of Motion for TRO, and/or

Preliminary Injunction, Dkt. 14 (hereafter “Pls. Br.”) at 2.) Plaintiffs cite to no authority for the

proposition that the classifications contained in the prior statutory scheme are entitled to some

kind of permanent status and that any change to that statutory scheme must be evaluated in

reference to the older statutory classifications.      In fact, the statutes governing collective

bargaining for public employees have changed in many respects over the decades with the

University of Wisconsin System Faculty and Academic Staff Labor Relations Act (“FASLRA”),

Wis. Stat. § 111.95 et seq., having been enacted just two years ago in 2009. Just as the

Legislature’s past exercise of its authority to create and amend the State’s collective bargaining

laws is entitled to a strong presumption of validity, so too is Act 10 entitled to such a

presumption.

       Indeed, the State could lawfully determine that sound public policy compelled it to end

all collective bargaining for public employees. Plaintiffs make no argument to the contrary. The

validity of such a policy decision would not be judged against the State’s previous policy of

allowing collective bargaining. Nor would such a policy be subject to an Equal Protection

analysis. This point is of critical significance because, despite their sweeping rhetoric, the only

thing Plaintiffs have challenged – and the only aspect of Act 10 that could be challenged on

Equal Protection grounds – is Act 10’s classification of some state and municipal employees as

Public Safety Employees.       In other words, the underlying policy decision to modify the

collective bargaining privileges of public workers is not at issue in this case, and Defendants




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have no obligation to supply a “rational basis” for that decision. Rather, an Equal Protection

analysis in that context focuses solely on classifications in statutes. The cases cited by Plaintiffs

make this quite clear. (Pls. Br. at 17-20.)

       Thus, for purposes of this Court's review, it is irrelevant whether the broader purpose of

Act 10 is budgetary or designed to achieve certain financial benefits for the State and local

governments. The only question is whether there is a rational basis for creating the “Public

Safety” classification. Importantly, the basis for establishing such a classification need not be

the same as the underlying purpose of Act 10, and the Court should reject Plaintiffs' suggestion,

whether express or implied, that the two issues should be tied together.

I.     PRELIMINARY INJUNCTION STANDARD

       A preliminary injunction is considered an extraordinary and drastic remedy that should

not be granted unless the movant carries the burden of persuasion by a clear showing. See

Boucher v. School Bd. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998); Roland Mach. Co. v.

Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984) (noting that the granting of a preliminary

injunction is “an exercise of a very far-reaching power, never to be indulged in except in a case

clearly demanding it”); see also Lasco v. Northern, 733 F.2d 477, 480 (7th Cir. 1984) (a

preliminary injunction should only be granted in a case where the movant has clearly carried its

burden of persuasion as to all the prerequisites).

       In order to obtain an injunction, the movant must show: (1) a likelihood of success on the

merits; (2) a lack of an adequate remedy at law; and (3) an irreparable harm that will result if the

injunction is not granted. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the USA, Inc.,

549 F.3d 1079, 1086 (7th Cir. 2008). Failure to make any one of these showings is fatal to the

movant. Id. (“If the court determines that the moving party has failed to demonstrate any one of

these three threshold requirements, it must deny the injunction.”) Where, as here, the rational


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basis test is implicated in the analysis of the movant’s likelihood of success on the merits, the

movant bears a very heavy burden. Faheem-El v. Klincar, 841 F.2d 712, 727 (7th Cir. 1988)

(reversing grant of a preliminary injunction because plaintiff failed to meet the “heavy burden”

presented by the rational basis test).

       If the movant can satisfy the threshold burden, the court then proceeds to “weigh[] the

irreparable harm that the moving party would endure . . . against any irreparable harm the

nonmoving party would suffer if the court were to grant the requested relief.” Girl Scouts, 549

F.3d at 1086 citing Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir. 1992)). As

part of this balancing of interests, the court also must consider the effects of its decision on

nonparties and the public interest. Id.

       While their summary of the generic preliminary injunction standard is generally accurate,

Plaintiffs fail to acknowledge that courts apply a heightened standard when, as is the case here, a

movant seeks a mandatory injunction that would compel action (i.e., collective bargaining and

collection of union dues) as opposed to a prohibitory injunction that would forbid action.

“[M]andatory preliminary writs are ordinarily cautiously viewed and sparingly issued.” Jordan

v. Wolke, 593 F.2d 772, 774 (7th Cir.1978); see also Marlyn Nutraceuticals, Inc. v. Mucos

Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (“mandatory injunctions are not

granted unless extreme or very serious damage will result and are not issued in doubtful cases or

where the injury complained of is capable of compensation in damages”); Clune v. Publishers'

Ass'n of New York City, 214 F. Supp. 520, 531 (S.D.N.Y. 1963) (“[C]ourts are more reluctant to

grant a mandatory injunction than a prohibitory one and that generally an injunction will not lie

except in prohibitory form.”).




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       Moreover, the “purpose of a preliminary injunction is to preserve the status quo.” Jessen

v. Village of Lyndon Station, 519 F. Supp. 1183, 1185 (W.D. Wis. 1981) (citing Equal Emp.

Opp. Comm’n v. City of Janesville, 630 F.2d 1254, 1259 (7th Cir. 1980)); see also Dore &

Assocs. Contracting, Inc. v. American Druggists’ Ins. Co., 54 B.R. 353, 360 (Bankr. W.D. Wis.

1985) (“The purpose and sole function of a preliminary injunction is to preserve the status quo. .

. .”). The status quo to be preserved by a preliminary injunction has been defined as “the last

uncontested status, which preceded the lawsuit.” American Hosp. Assoc. v. Harris, 625 F.2d

1328, 1332 (7th Cir. 1980); Squillacote v. Local 248, Meat & Allied Food Workers, 390 F. Supp.

1180, 1186 (E.D. Wis. 1975), aff’d, 534 F.2d 735 (7th Cir. 1976). As explained in Section VII,

below, Plaintiffs request an injunction that will fundamentally alter the status quo.

       Against these standards, Plaintiffs fail to carry their burden at every turn.

II.    PLAINTIFFS HAVE NO PROBABILITY OF SUCCESS ON THE MERITS OF
       THEIR EQUAL PROTECTION CLAIM

       A.      The Level Of Deference This Court Must Afford To The State’s Choices
               Demonstrates That Preliminary Injunctive Relief Is Not Appropriate.

       Plaintiffs begin the discussion of their equal protection claim conceding, as they must,

that their challenges to the recently enacted amendments to SELRA and MERA are governed by

the lowest standard of review – the rational basis test. (Pls. Br. at 17.) A review of that standard

reveals that, in reality, this concession amounts to an admission that preliminary injunctive relief

is not appropriate. The United States Supreme Court has explained:

       [R]ational-basis review in equal protection analysis is not a license for courts to
       judge the wisdom, fairness, or logic of legislative choices. Nor does it authorize
       the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of
       legislative policy determinations made in areas that neither affect fundamental
       rights nor proceed along suspect lines. For these reasons, a classification neither
       involving fundamental rights nor proceeding along suspect lines is accorded a
       strong presumption of validity. Such a classification cannot run afoul of the
       Equal Protection Clause if there is a rational relationship between the disparity of
       treatment and some legitimate governmental purpose. Further, a legislature that


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       creates these categories need not actually articulate at any time the purpose or
       rationale supporting its classification. Instead, a classification must be upheld
       against equal protection challenge if there is any reasonably conceivable state of
       facts that could provide a rational basis for the classification.

Heller v. Doe, 509 U.S. 312, 319-21 (1993) (citations omitted). The Supreme Court continued:

“A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory

classification. A legislative choice is not subject to courtroom fact finding and may be based on

rational speculation unsupported by evidence or empirical data.” Id. (citing FCC v. Beach

Commc'ns, Inc., 508 U.S. 307, 315 (1993); Vance v. Bradley, 440 U.S. 93, 111 (1979); Hughes v.

Alexandria Scrap Corp., 426 U.S. 794, 812 (1976); Locomotive Firemen v. Chicago, R.I. & P.R.

Co., 393 U.S. 129, 139 (1968)).

       Further, “[a] statute is presumed constitutional, and ‘[t]he burden is on the one attacking

the legislative arrangement to negative every conceivable basis which might support it,’ whether

or not the basis has a foundation in the record.” Id. at 320-21 (citing Lehnhausen v. Lake Shore

Auto Parts Co., 410 U.S. 356, 364 (1973)).

       “Finally, courts are compelled under rational-basis review to accept a legislature’s

generalizations even when there is an imperfect fit between means and ends. A classification

does not fail rational-basis review because it ‘is not made with mathematical nicety or because in

practice it results in some inequality.’” Id. at 321 (quoting Dandridge v. Williams, 397 U.S. 471,

485 (1970) and Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911)). This is the rule

because “[t]he problems of government are practical ones and may justify, if they do not require,

rough accommodations illogical, it may be, and unscientific.” Id. (quoting Metropolis Theatre

Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913); and citing Burlington Northern R.R. Co. v.

Ford, 504 U.S. 648, 653 (1992); Vance, 440 U.S. at 108, n.26; New Orleans v. Dukes, 427 U.S.

297, 303 (1976); Schweiker v. Wilson, 450 U.S. 221, 234 (1981)).



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        Faced with this standard this Court has in the past acknowledged the obvious: “Under the

rational basis test, plaintiff’s chance of success on the merits of his equal protection claim is

dubious at best ... Accordingly, plaintiff’s equal protection claim does not entitle him to a

preliminary injunction.” Jessen v. Village of Lyndon Station, 519 F. Supp. 1183, 1186 (W.D.

Wis. 1981); see also Chicago Bd. of Realtors, Inc. v. City of Chicago, 819 F.2d 732, 740 (7th

Cir. 1987) (denying preliminary injunction because the rational basis test requires that “plaintiffs

must show that no set of facts reasonably could be conceived to establish a rational basis for the

classification”) (citing United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980));

Wroblewski v. City of Washburn, 965 F.2d 452, 460 (7th Cir. 1992) (“[P]laintiff must allege facts

sufficient to overcome the presumption of rationality that applies to government

classifications.”); Faheem-El v. Klincar, 841 F.2d 712, 727 (7th Cir. 1988) (reversing grant of a

preliminary injunction because plaintiff failed to meet the “heavy burden” presented by the

rational basis test).

        In light of the controlling standard it is nearly impossible to imagine a situation in which

a plaintiff would be able to demonstrate a likelihood of success on the merits. On the papers

before the Court, it is clear these Plaintiffs have not done so.

        B.      There Is A Rational Basis For The Differing Treatment Of General
                Employees And Public Safety Employees.

                1.      The rational basis.

        While the applicable standard of review does not require the State to present to the Court

its actual reasoning and, instead, instructs that this Court may rely on imagined facts to find any

rational basis, the reality is that the Governor and his administration did engage in a systematic

analysis when crafting Act 10. In addition, in creating these classifications, the State had for its

purpose the goal of modifying the collective bargaining privileges of as many state and



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municipal employees as possible had to be accomplished without putting the State and its

citizens at risk of a crippling lack of essential governmental services.1

         Accordingly, the State engaged in a comprehensive analysis of the various services

provided by each State and municipal agency and made a determination as to the State’s ability

to operate in the absence of those services due to a job action and/or strike by state and municipal

employees. Continuity of State and local public safety services was a key consideration, but the

administration also needed to ensure that other critical functions and services of state

government continued to operate. The level of importance of the services provided and the

State’s ability to cover those services by other means were compelling factors as to whether the

employees who provide those services were classified as general or public safety employees.

         The administration began its review with each state agency’s Continuity of Operations

Plan (COOP). (Affidavit of Cynthia Archer (hereinafter “Archer Aff.”), ¶¶ 3-4). In its COOP,

each state agency is required to rank the services it provides as Level 1, 2, 3 or 4. (Archer Aff., ¶

4). Level 1 services are those services that, in the opinion of the agency, are the most critical

services it provides. (Archer Aff., ¶ 4). Prior to submitting Act 10 to the legislature, the

administration undertook to determine which of these Level 1 services or other services, if

interrupted by a work stoppage, would cause clear and present danger to the public health and

safety. (Archer Aff., ¶ 5). Once that determination was made, the administration considered

several factors to determine which public employees, if any, should be included in the Public

Safety Employee category. (Archer Aff., ¶ 6). Those factors included: the degree to which the

services impact public health and safety, the length of time a disruption could be tolerated, the
1
  The underlying purpose for making the modifications to the collective bargaining privileges in Act 10 was to
provide State agencies and municipalities with the ability and flexibility to absorb the necessary reductions in State
funding resulting from the State’s financial situation. This rationale was often stated by Governor Walker.
((Declaration of Patricia A. Kusenberger (hereinafter “Kusenberger Decl.”), Ex. H.). As noted above, however, the
underlying purpose of Act 10 is not at issue in this case. The only relevant question is whether there is a rational
basis for the "Public Safety Employee" classification.


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number of non-union employees who are qualified to provide the services, the number of

qualified union employees who could be expected to not participate in a work stoppage, the

ability to contract with private firms to provide the services for the duration of a work stoppage,

the number of recent retirees available as temporary employees, and the ability to back fill

positions with Wisconsin National Guard personnel. (Archer Aff., ¶ 6).2

         After gathering and considering this information, it became clear there were insufficient

state resources (unclassified staff, contractors, retirees, National Guard members, etc) to fulfill

the backfill staffing requirements necessary to ensure the continuation of critical services.

(Archer Aff., ¶¶ 8-9). The Governor was advised that reliance on the state patrol and local law

enforcement were key assumptions in state agency continuity plans, and that a job action by

these employees might jeopardize critical state services. (Archer Aff., ¶ 10). This analysis

ultimately provided the basis to determine which categories of state employees should be

included in the definition of Public Safety Employee.

          Given that this kind of detailed data for municipalities was not as readily available to the

administration, the analysis, while still comprehensive, was less detailed and expectedly resulted

in the inclusion of a greater number of municipal job descriptions in the definition of Public

Safety Employee. In other words, the administration made a decision to be overly inclusive to

ensure that essential local fire and police services remained available to the citizens of

Wisconsin.

         Plaintiffs have attempted to make hay out of the fact that some public employees who

provide law enforcement and fire protection services were not included as Public Safety

2
  The National Guard has a standing plan in place for supplying the necessary labor to ensure Wisconsin’s
Departments of Corrections, Health Services and Administration are able to continue operating during a labor
shortage. In addition to these standing plans, the National Guard can also provide law enforcement support. (Archer
Aff., ¶ 7). In fact, in 2003 Governor Doyle considered calling up the National Guard to staff the prisons due to a sick
out of prison guards. (Kusenberger Decl., Ex. I).


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Employees while others were. This argument fails. In fact, it has been expressly rejected by the

Seventh Circuit. Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir. 1997) (“Most of the plaintiffs’

arguments criticize the statute for being either overinclusive or underinclusive; under rational

basis review, however, the classification need not be the most narrowly tailored means available

to achieve the desired end.”) At least one court has rejected Plaintiffs’ argument on facts that are

nearly identical to the present case. In Margiotta v. Kaye, 283 F. Supp. 2d 857 (E.D.N.Y. 2003),

the District court upheld New York’s exclusion of Court Security Officers from the mandatory

arbitration system it established for other law enforcement personnel. In upholding the law, the

Court noted, the Court Security Officers “possess similar authority as police officers” and

“indisputably perform critical and extremely valuable public service” but held that the exclusion

of some law enforcement employees and the inclusion of others did not offend the equal

protection clause. Id. at 864. Specifically, the Court held, “[a] classification does not fail

rational basis review because it is not made with mathematical nicety or because it results in

some inequality.” Id. (citing Heller, 509 U.S. 312).

       This Court is not allowed to reevaluate the accuracy or desirability of the State’s

evaluation nor may the Court demand perfection in the achievement of its objective. Heller, 509

US. at 319 (“rational-basis review in equal protection analysis is not a license for courts to judge

the wisdom, fairness, or logic of legislative choices.”).    Instead, “courts are compelled under

rational-basis review to accept a legislature's generalizations even when there is an imperfect fit

between means and ends.” Id. at 321. Thus, even if Plaintiffs could find examples where the

State’s analysis fails to perfectly match with the enacted law, or even if this Court might disagree

with the State’s analysis of what is or is not an essential service, this Court must uphold the Act.




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       This is true even if this Court were convinced that the State’s conclusion was factually

incorrect.   “[T]o survive rational basis scrutiny, a state action need not actually further a

legitimate interest; it is enough that the governing body could have rationally decided that the

action would further that interest.” Johnson v. Rancho Santiago Community College Dist., 623

F.3d 1011, 1031 (9th Cir. 2010)(emphasis in original)(quoting Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 466 (1981)).

       Accordingly, Plaintiffs’ protestation that the Public Safety Employee classification

created by Act 10 does not mirror a prior existing classification of Protective Services

Employees is of no moment.

               2.      The avoidance of a work stoppage by public safety employees is a
                       legitimate, recognized rational basis.

       Plaintiffs claim that the prevention of work stoppages cannot form the necessary rational

basis because such strikes by state and municipal employees are illegal. (Pls. Br. at 25.) Such

reasoning not only denies reality, it has been expressly rejected by several courts.

       It is a fact that public sector employees have gone on strike and/or engaged in other job

actions despite the anti-strike provisions of SELRA and MERA.             In 1975, the Wisconsin

Supreme Court dealt with two cases that flowed from two separate, illegal teacher strikes. See

Joint Sch. Dist. No. 1 v. Wis. Rapids Educ. Ass'n, 70 Wis. 2d 292, 234 N.W.2d 289 (1975)

(Wisconsin Rapids teachers went on strike despite prohibition of MERA); Hortonville Educ.

Ass'n v. Hortonville Joint Sch. Dist. No. 1, 66 Wis. 2d 469, 225 N.W.2d 658 (1975) (Hortonville

teachers struck in violation of no strike provision of MERA).      The then current version of the

anti-strike provision applicable to these teachers was the functional equivalent of the current no

strike provisions applicable to municipal law enforcement and fire fighting personnel and state




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employees relied on by Plaintiffs. Compare Wis. Stat. § 111.70(4)(1)(1974) with Wis. Stat §§

111.71, 111.84(2)(e).

        Likewise in 1978, the Wisconsin Supreme Court decided issues related to a statewide

strike of the Wisconsin State Employees Union called in 1977. See State v. King, 82 Wis. 2d

124, 262 N.W.2d 80 (1978). These striking state employees were subject to the very same anti-

strike clause on which Plaintiffs rely. Compare Wis. Stat. § 111.84(2)(e)(1977) with Wis. Stat. §

111.84(2)(e)(2011). That this strike was called by one of the Plaintiffs in this case highlights the

absurdity of Plaintiffs argument. King, 82 Wis. 2d at 126 (“These two cases arise from a labor

dispute between the Wisconsin State Employees Union, Council 24 … and the State of

Wisconsin.”).

        More recent history confirms that the illegality of strikes, in and of itself, does not

inoculate the State from job actions. As recently as 2003, then-Governor Doyle considered

calling up the National Guard to staff Wisconsin’s prisons “after hundreds of prison guards

called in sick to protest stalled contracts …”. (Kusenberger Decl., Ex. I).3

        In Wisconsin Rapids, the Wisconsin Supreme Court recognized the reality of strikes

despite the anti-strike previsions of MERA and SELRA stating:

        Public employment strikes are a reality which cannot be ignored. While the
        potential for immediate and serious harm to public health and safety is very real in
        the case of strikes by policeman, firemen and, to a lesser extent, sanitation
        workers, it is not critical where, for example, the strike is one by teachers, clerical
        employees or construction workers and others.

Wis. Rapids Educ. Ass'n, 70 Wis. 2d at 312.

        State v. King acknowledged that attempts to enforce the anti-strike laws in court are only

as effective as the employees’ willingness to obey a court order. 82 Wis. 2d at 127 (noting that


3
  Plaintiffs’ argument also calls to mind the Air Traffic Controller Strike in 1981, which occurred despite the fact
that such a strike was prohibited by federal law. See 5 U.S. C. § 111p (1981), recodified as 5 U.S.C. § 7311.


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two different circuit courts issued temporary injunctions enjoining the strikes but “in both cases

[the employees] ignored the temporary injunction and continued to strike in defiance of the

injunction”).

        In Hortonville the Wisconsin Supreme Court took the sentiments expressed in Wisconsin

Rapids to the logical conclusion and expressly held that seeking to prevent strikes by law

enforcement personnel and fire fighters provided a rational basis for providing them with

privileges under MERA and SELRA that were not provided to teachers. Specifically, the court

rejected the teachers’ claim that the granting of binding arbitration to police and fireman but not

teachers was a violation of the Equal Protection Clause of the Fourteenth Amendment in light of

the fact that teachers, like firemen and police, were subject to no strike provisions.4 Id. at 478.

As the Wisconsin Supreme Court noted, “[i]t is not difficult to find a rational basis for the

legislation.    If police or firemen go on strike the imminent and immediate danger to the

community is so great that every reasonable measure must be taken to get them back on the job

as soon as possible, or to prevent them from striking in the first instance.” Id. at 484-85

(emphasis added). Here, the State acted with the same rational basis of seeking to prevent the

disruption of essential public services due to a work stoppage. The result should be the same.5

        Likewise, federal courts have recognized that preventing work stoppages is a rational

basis for disparate treatment among public employees. Margiotta, 283 F. Supp. 2d at 865

(upholding the selective provision of binding arbitration for “police offices, firefighters and other


4
 While it appears that the Plaintiff teachers did not bring a claim under the corresponding sections of the Wisconsin
Constitution provision, the analysis would have been the same. County of Kenosha v. C&S Management, Inc., 223
Wis. 2d 373, 588 N.W.2d 236 (1999).
5
  The U.S. Supreme Court did grant certiorari in Hortonville. See 426 U.S. 482 (1976). The U.S. Supreme Court,
however, left undisturbed the Wisconsin Supreme Court’s equal protection analysis and instead limited its review to
“determine[ing] whether School Board members, vested by state law with the power to employ and dismiss
teachers, could, consistent with the Due Process Clause of the Fourteenth Amendment, dismiss teachers engaged in
a strike prohibited by state law.” Id. at 483.


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miscellaneous public safety employees” because they provide “essential services which, if

momentarily disrupted, would cause clear and present danger to the public health and safety.”);

cf. American Fed'n of Gov’t Employees, AFL-CIO v. Loy, 281 F. Supp. 2d 59, 66 (D.D.C. 2003)

(upholding the exclusion of TSA security screeners from the civil service system and the denial

of collective bargaining privileges because “Congress could rationally conclude that airport

security requires federal employees who operate with more flexibility than civil service or

collectively-bargained protections and procedures would allow”).

       Further, Plaintiffs’ argument is directly refuted by what actually happened in Wisconsin

during the debate over Act 10. Numerous schools were forced to close because thousands of

teachers across the State participated in sick outs organized by their unions. (Kusenberger Decl.,

Exs. J-Q). Doctors employed by the State have been implicated in a fake sick note scam.

(Kusenberger Decl., ¶ E). Moreover, the South Central Federation of Labor, comprising 97

unions representing 45,000 employees called for a general strike. (Kusenberger Decl., Ex D).

Despite these mass job actions and calls for general strikes, there have been no reports of the

disruption of those services identified by the State’s analysis to be essential. Thus, not only was

the State’s classification rationally related to the important governmental goal of continuing the

provision of critical public services, it appears to have been successful.

       Plaintiffs cite two cases which they claim support their position that the anti-strike

provisions of MERA and SELRA render the State’s goal of preventing strikes or other job

actions irrational. Neither case, however, actually supports their position. The first case, County

of Sonoma v. Superior Court, 173 Cal. App. 4th 332 (Cal. App. 2009), is not just inapposite, it is

wholly irrelevant. County of Sonoma is a decision from an intermediate appellate court of

California analyzing an esoteric judge-made exception to certain home-rule type provisions of




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the California state constitution. Id. at 332, 338-39. The Court’s analysis of these issues did not

involve any standard of review approximating, in any way, the rational basis test this Court is

called upon to apply. County of Sonoma has no application to the present case.

       Plaintiffs’ second case is also easily distinguished.      While, U.S. Dep't of Agric. v.

Moreno, 413 U.S. 528 (1973), is an equal protection case, it does not support the Plaintiffs’

position.   Moreno did not address the impact of an anti-strike law on whether the government

can justify a classification on the basis that it is attempting to prevent a job action. Instead,

Moreno dealt with challenges to amendments made to the federal food stamps program. The

amendments rendered otherwise eligible households ineligible if the household contained

unrelated persons. Id. at 529. The government argued that households with unrelated members

were more likely to defraud the system and that the redefinition of household was rationally

related to the governmental objective of preventing fraud on the food stamps system. Id. at 535.

The Supreme Court rejected the government’s rationale but did not hold, as Plaintiffs suggest,

that the existence of anti-fraud provisions was dispositive; rather, the Court simply noted these

provisions and stated that they created “doubt” that the amendment was designed to prevent

fraud. Id. at 536. The court’s actual holding was that the exclusion of households containing

unrelated persons was without a rational basis because “in practical operation, the 1971

amendment excludes … not those persons who are likely to abuse the program but rather, only

those persons who are so desperately in need of aid that they cannot even afford to alter their

living arrangements so as to retain their eligibility.”   Id. at 538 (emphasis in original). The

Court continued, “[t]raditional equal protection analysis does not require that every classification

be drawn with precise mathematical nicety. But the classification here … is not only imprecise,

it is wholly without rational basis.” Id. (citation omitted). Thus, the ultimate holding of the case




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is that the amendment was so far wide of the mark of its stated purpose that it belied the normal

understanding of imprecision and left the Court with only one conclusion – Congress could not

have rationally believed that the amendment would further its goal. As noted above, that is not

the case here.

         C.       Plaintiffs’ Attempt To Reduce Act 10 To Crass Political Payback Fails.

         Plaintiffs argue that the only possible reason they can fathom for the differing treatment

of Public Safety Employees and General Employees is political favoritism. Plaintiffs assert that

the Unions which endorsed Governor Walker during his bid for Governor line up perfectly with

the employees who fall within the Public Safety Employee category.                           (Pls. Br. at 28-30.)

(arguing that the Public Safety Employee definition was crafted to reward the “politically

powerful Milwaukee police and fire unions.”) Plaintiffs’ efforts to malign the Governor fail.

         First, Plaintiffs’ assertions are factually incorrect. Plaintiffs note that the employees

represented by the five unions and/or lobbying organizations that endorsed the Governor in the

2010 election fall within the Public Safety Employee classification. But Plaintiffs fail to tell the

real story. For example, while it is true that the Milwaukee Professional Police Association and

the Milwaukee Professional Fire Fighters Association endorsed Governor Walker’s candidacy,

their statewide counterparts did not. Both the Professional Firefighters of Wisconsin and the

Wisconsin Professional Police Association endorsed Governor Walker’s opponent – Milwaukee

Mayor Tom Barrett.6 (Kusenberger Decl., Exs. A & B). If the purpose of Act 10 were really just

to punish those unions who endorsed Mayor Barrett and reward those unions who endorsed the

Governor then Act 10 is overly inclusive to an absurd degree. Indeed, the definition of Public
6
  Of course, it is important to note that both houses of the Legislature passed Act 10. Plaintiffs fail to explain how
majorities in both houses reached consensus on this purported "political payback" scheme to benefit the Governor's
union supporters. Although the record is not developed on this issue, it is quite likely that many of those legislators
who voted for Act 10 did not receive the same endorsements as the Governor. Similarly it is quite likely that many
legislators who voted against Act 10 received those endorsements. Ultimately, Plaintiffs' "political payback"
assertions may be interesting political theater, but they do not rise to the level of having any legal significance.


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      Case: 3:11-cv-00428-wmc Document #: 40               Filed: 06/27/11 Page 25 of 45



Safety Employees includes all municipal police and firefighters, including the Madison

firefighters whose union head called for a general strike in response to Act 10. (Kusenberger

Decl., Ex. C).

       If the purpose of Act 10 were mere political payback, its provisions could have been

much more narrowly drawn to reward only those powerful Milwaukee based unions. This

narrower version of the law would be both constitutional and in keeping with Wisconsin’s

historical labor laws. See, e.g., Hearne v. Bd. of Educ., 185 F.3d 770, 774-75 (7th Cir. 1999)

(upholding an Illinois law that weakened the collective barging privileges of Chicago teachers

because “it was entirely rational for the legislature to believe that the logistics of running a

school system designed to serve 431,085 students (the number of students enrolled in Chicago’s

public schools for the 1997-98 school year) were far different from those implicated in systems

serving less than a tenth of that number”); see also Wis. Stat. § 111.70(4)(jm)(1971)(entitled:

Binding Arbitration, Milwaukee and which states “This paragraph shall apply only to members

of a police department employed by cities of the 1st class.”)

       Second, assuming, arguendo, that Plaintiffs’ allegations of favoritism were not entirely

frivolous, they are irrelevant because there is an independent rational basis for the classification.

See, e.g., Hearne, 185 F.3d at 775 (7th Cir. 1999) (“[T]here is no rule whereby legislation that

otherwise passes the proper level of scrutiny … becomes constitutionally defective because one

of the reasons the legislators voted for it was to punish those who opposed them during an

election campaign. Indeed, one might think that this is what election campaigns are all about:

candidates run on a certain platform, political promises made in the campaign are kept

(sometimes), and the winners get to write the laws.”).




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III.    PLAINTIFFS HAVE NO PROBABILITY OF SUCCESS ON THE MERITS OF
        THEIR FIRST AMENDMENT CLAIM, AS THAT CLAIM IS WITHOUT MERIT

        Prior to the adoption of Act 10, public employees in Wisconsin were generally able to

utilize automatic payroll deductions for the payment of their union dues. The prior version of

Wis. Stat. § 20.921(1)(a)2. allowed payroll deductions for the “[p]ayment of dues to employee

organizations.” Under § 58 of Act 10, public safety employees may have their union dues paid

through payroll deductions.    Other public employees may not.        Plaintiffs contend that the

elimination of payroll deductions for the payment of general employee union dues violates the

First Amendment to the United States Constitution because these changes “discriminate[] on the

basis of the identity of the speaker” and thus amount to “speaker-based and viewpoint-based

discrimination.” (Pls. Br. at 31, 34.) Plaintiffs’ First Amendment claim is entirely without merit.

It is based on the false premise that, under Wisconsin law, payroll deductions for the payment of

union dues constitute a “subsidy” in support of “core political speech” and other expressive

activities. (Id.) However, under Wisconsin law, payroll deductions may not be used for such

purposes. Wis. Stat. § 20.921(1).

        Indeed, Plaintiffs’ argument that the direct payment of union dues should be

characterized as a subsidy for First Amendment activities would render unconstitutional all such

payments made prior to Act 10 because public employees in Wisconsin are precluded from using

payroll deductions to support any other activities or organizations with the exception of public

charities.   Wis. Stat. § 20.921(1)(a)4.; Wis. Admin. Code §§ Adm 30.02(1), 30.03(1). By

Plaintiffs’ logic, the State of Wisconsin has been in violation of the First Amendment for many

years by supporting only union political activity to the exclusion of all others, thereby rendering

such payments unlawful in the first instance. The Court should not go down that path.




                                                19
     Case: 3:11-cv-00428-wmc Document #: 40                Filed: 06/27/11 Page 27 of 45



       Finally, while Plaintiffs cite to case law which generally addresses the issue of viewpoint

discrimination by the government, they fail to articulate any claim under that doctrine. Nowhere

do Plaintiffs identify any particular viewpoint that is allegedly being silenced by Act 10. Instead,

they make conclusory assertions without reference to any relevant authority. All of Plaintiffs’

arguments are insufficient to establish a reasonable probability of success on the merits of any

claim under the First Amendment.

       A.      Under Wisconsin Law, Payroll Deductions For The Payment Of Union Dues
               Do Not Implicate First Amendment Activities.

       Plaintiffs assert in conclusory fashion that the payment of union dues via payroll

deduction constitutes a subsidy in support of public employees’ exercise of their First

Amendment rights. Plaintiffs state, “we can assume for purposes of the present motion that Act

10’s allowance of a payroll deduction to ‘public safety’ unions may be characterized as a

‘subsidy’” and that “where the government chooses to subsidize the ability of private speakers to

communicate their own political and social ideas, the First Amendment still bars the government

from discriminating based on the identity of the speaker rather than on the general subject matter

of the speech.” (Pls. Br. at 35, emphasis added.) The premise of Plaintiffs’ First Amendment

claim is based on the unsupported assertion that payroll deductions for the payment of union

dues are designed to facilitate the exercise of public employees’ First Amendment activities.

However, Plaintiffs cite no authority for this assertion and Wisconsin law reveals that this

assertion must be squarely rejected.

       The purposes for which a public employee in Wisconsin may request that a direct

payment be made via payroll deduction from one’s salary are listed in Wis. Stat. § 20.921(1).

That statutory section provides in relevant part as follows:

       (a) Any state … employee … may request in writing through the state agency in
       which the … employee is employed … that a specified part of the … employee's


                                                20
       Case: 3:11-cv-00428-wmc Document #: 40                        Filed: 06/27/11 Page 28 of 45



         salary be deducted and paid by the state … to a payee designated in such request
         for any of the following purposes:

                  1. The purchase of U.S. savings bonds.

                  2. Payment of dues to employee organizations.7

                  2m. Payment of amounts owed to state agencies or to the University of
                  Wisconsin Hospitals and Clinics Authority by the employee.

                  2n. Payment of amounts owed as child support, maintenance payments or
                  family support.

                  3. Payment of premiums for group hospital and surgical-medical insurance
                  or plan, group life insurance, and other group insurance …

                  4. Other group or charitable purposes approved by the governor and the
                  department of administration under the rules of the department of
                  administration for state officers or employees …

                  5. Payment into an employee-funded reimbursement account maintained
                  by an employee-funded reimbursement account provider under subch.
                  VIII of ch. 40.

Wis. Stat. § 20.921(1) (emphasis added).

         Subsection (1)(a)4. allows for direct payments to charitable organizations which are

approved by the governor and department of administration. The rules governing charitable

giving via payroll deductions are set forth in Wis. Admin. Code ch. Adm. 30. “Only approved

charitable organizations are permitted to be designated for payroll deductions by state

employees.” Wis. Admin. Code § Adm. 30.02(1). “Charitable organizations” are defined as

“any corporation or other entity described in internal revenue code section 501 (c) (3) …” Wis.

Admin. Code § Adm. 30.03(1).

         Charitable organizations that qualify for § 501(c)(3) status under the Internal Revenue

Code are expressly limited in their political and lobbying activities. See IRC § 501(c)(3). They

7
  Section 58 of Act 10 amends this subsection to read, 20.921 (1) (a) 2. Payment If the state employee is a public
safety employee under s. 111.81 (15r), payment of dues to employee organizations.



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     Case: 3:11-cv-00428-wmc Document #: 40                Filed: 06/27/11 Page 29 of 45



do not enjoy the broad range of rights afforded to corporations, unions and other organizations,

including “the right to communicate directly with the public regarding politics by making

independent expenditures of dues income that advocate the election or defeat of political

candidates.” (Pls. Br. at 33, citing Citizens United v. Federal Election Comm’n, 130 S. Ct. 876,

911-13 (2010)). Thus, public employees in Wisconsin may not utilize payroll deduction for the

purpose of supporting organizations that engage in political activities.

       Payroll deductions for the payment of union dues are allowed under Wis. Stat.

§ 20.921(1)(a)2. According to Plaintiffs, such payments via payroll deduction constitute the

exercise of public employees’ First Amendment rights which is subsidized by the government.

However, Plaintiffs’ position in this regard is in direct conflict with the restrictions on payroll

deductions contained in Wis. Stat. § 20.921(1)(a)4. By Plaintiffs’ logic, public employees can

express their First Amendment rights through payroll deductions by giving to an organization

that engages in “core political speech activities” (Pls. Br. at 31) only if that organization is a

union. If a public employee wishes to use payroll deductions to support any other organization

that engages in political activities, he or she is precluded from doing so under Wis. Stat. §

20.921(1)(a)4.

       According to Plaintiffs’ own argument, characterizing the payment of union dues via

payroll deduction as a subsidy for the exercise of core political speech would render all such

payments unconstitutional. The remedy would not be to restore the direct payment of union dues

for general employees, as existed prior to Act 10. The remedy would be to eliminate all such

payments on grounds that allowing them would amount to unlawful viewpoint discrimination

under the First Amendment.




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         However, this Court need not reach such a conclusion. It is well settled that courts

should construe statutes in a manner that renders them constitutional. American Family Mut. Ins.

Co. v. Department of Revenue, 222 Wis. 2d 650, 667, 586 N.W.2d 872 (1998); see also State v.

Langlade County Creamery Co., 193 Wis. 113, 116, 212 N.W.2d 664 (1927) (“it is the duty of

the court to give the acts of the Legislature a construction that will bring them into harmony with

the provisions of the Constitution, and not into conflict with the fundamental law”); State ex rel.

Harvey v. Morgan, 30 Wis. 2d 1, 13, 139 N.W.2d 585 (1966).                                 Here, to preserve the

constitutionality of any payment of union dues via payroll deduction, the Court should not accept

Plaintiffs’ premise that such payments reflect a subsidy by the state of Wisconsin in support of

public employees’ exercise of their First Amendment rights. The Court should construe such

payments as what they are, namely the direct “payment of dues to employee organizations.”

Wis. Stat. § 20.921(1)(a)4.8

         Importantly, Plaintiffs acknowledge that the government is “not constitutionally required

to facilitate or subsidize private organizations’ First Amendment activities by allowing payroll

deductions.” (Pls. Br. at 34.) Plaintiffs cite to Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353,

129 S. Ct. 1093 (2009), which held that an Idaho statute prohibiting payroll deductions for

political activities did not run afoul of the First Amendment. Yet, Plaintiffs argue that “a payroll

deduction ban will be vulnerable to challenge on First Amendment grounds if it … allows

‘deductions for some political activities but not for those of unions.’” (Pls. Br. at 35, quoting

Ysursa¸129 S. Ct. at 1099 n.3.)

8
  Such a construction is consistent with other statutes that prohibit the use of state resources for political purposes.
For example, pursuant to Wis. Stat. § 11.36(1), “[n]o person may solicit or receive from any state … employee …
any contribution … for any political purpose while the … employee is engaged in his or her official duties …”
Plaintiffs’ characterization of the purpose of payroll deductions to pay union dues would render such payroll
deductions an improper allocation of state resources for political activities. The Court may also take judicial notice
of several high-profile cases in recent years involving the criminal prosecution of public officials for allegedly using
state resources for political purposes.



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       Case: 3:11-cv-00428-wmc Document #: 40                         Filed: 06/27/11 Page 31 of 45



         The Supreme Court’s decision in Ysursa provides no support for Plaintiffs’ claim here.

As noted above, Plaintiffs’ argument depends on the premise that payroll deductions to pay

union dues are designed to support political activities by unions and their members. Assuming

Plaintiffs could first establish that premise, and assuming Ysursa stands for the proposition that

under the First Amendment the government may not allow payroll deductions for some political

activities while excluding unions, nothing in Act 10 runs afoul of such a prohibition. Act 10

does not provide a subsidy for the political activities of some groups, but not unions. To the

contrary, according to Plaintiffs’ own argument, the only groups that receive such a subsidy are

unions. No other groups receive any such support.

         Moreover, in Ysursa, the Supreme Court was not faced with a statute that provided for

the direct payment of dues for some unions but not other unions. Rather, the Idaho statute at

issue established a prohibition on the direct payment for all political activities. Importantly,

prior to the enactment of that statute, Idaho law separately authorized “both a payroll deduction

for union dues and a payroll deduction for union political activities conducted through a political

action committee.” Ysursa, 129 S. Ct. at 1096. The Supreme Court did not address whether

payment for union dues as a general matter should also be characterized as support for political

activities or otherwise implicate First Amendment concerns. Thus, nothing in that case provides

support for this Court to reach such a conclusion here.9



9
  Plaintiffs assert that “union members’ contribution of dues to support action by their union is ‘a very significant’
form of expression protected by the First Amendment.” (Pls Br. at 33.) In support of this assertion, Plaintiffs cite to
Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981). However, that case simply does not stand
for such a proposition. That case involved the constitutionality of certain contribution limits imposed on committees
formed for the purpose of supporting or opposing ballot measures in California. The language quoted by Plaintiffs
provides that “[c]ontributions by individuals to support concerted action by a committee advocating a position on a
ballot measure is beyond question a very significant form of political expression.” Citizens Against Rent Control,
454 U.S. at 298. That may be true, but it does not address whether the payment of union dues generally amounts to
a form of expression, or whether, under Wisconsin law, payroll deductions for the payment of union dues are a
subsidy that supports such expression.


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       B.      Even If The Direct Payment Of Union Dues Amounted To Government
               Support For “Core Political Speech,” Plaintiffs Have Not Stated A Claim For
               Viewpoint Discrimination Under The First Amendment.

       The cases cited by the Plaintiffs in support of their argument that Act 10 discriminates

against the so-called “disfavored class” of general public employees address the issue of

viewpoint discrimination. Viewpoint discrimination is a form of content discrimination in which

the government restricts speech based solely on the “specific motivating ideology or the opinion

or the perspective of the speaker.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 829 (1995). Such discrimination arises when the government attempts to regulate the

“particular views taken by speakers on a subject” rather than the subject matter itself. Id.

(holding that where a public university offers funding to student groups, the university may not

refuse funding to a group solely based on the religious views of the group); Lamb’s Chapel v.

Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393 (1993) (holding that where a school

district opens school facilities for use after hours to a wide variety of groups, the district may not

restrict use of the facilities based on the religious views of the group seeking to use the facilities).

       Here, it would appear that Plaintiffs are attempting to assert a viewpoint discrimination

claim by arguing that Act 10 creates “a system of access to payroll deduction that discriminates

on the basis of the identity of the speaker.” (Pls. Br. at 31.) However, this argument fails to

recognize that viewpoint discrimination assumes a restriction based on the particular views or

ideas of the speaker and not the identity of the speaker. Rosenberger, 515 U.S. at 829. Plaintiffs

cite Rosenberger for the proposition that “government regulation may not favor one speaker over

another.” 515 U.S. at 828. From this statement, Plaintiffs appear to suggest that the government

may not engage in regulation of speech based on the identity of the speaker. However, this

characterization represents, at best, a misunderstanding of the principles underlying the doctrine

of viewpoint discrimination. The Supreme Court’s statement in Rosenberger is clearly grounded


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in the principle that the First Amendment forbids discrimination based on the viewpoints or ideas

espoused by a speaker – not the identity of the speaker. Members of City Council v. Taxpayers

for Vincent, 466 U.S. 789, 804 (1984) (stating that “the First Amendment forbids the government

to regulate speech in ways that favor some viewpoints or ideas at the expense of others”).

Indeed, “[t]he necessities of confining a forum to the limited and legitimate purposes for which it

was created may justify the State in reserving it for certain groups or for the discussion of

certain topics.”      Rosenberger, 515 U.S. at 829 (citation omitted) (emphasis added). Such

restrictions will not run afoul of the First Amendment unless they are based on the particular

viewpoint of the restricted speaker. Id.

         Nowhere in their pleadings do Plaintiffs identify the manner in which Act 10 has

restricted or silenced any particular viewpoint by halting automatic payroll reductions for general

public employees. Indeed, the only allegation made by the Plaintiff is that Act 10 somehow

restricts the expression of general public employees on the basis of their identity. Yet, there has

been nothing offered to suggest that the so-called “unfavored” unions have a particular viewpoint

that Act 10 seeks to silence as compared with the viewpoints of the so-called “favored” unions.10

Simply put, such an allegation cannot constitute viewpoint discrimination because Act 10 does

not restrict or discriminate against a “specific motivating ideology,” “opinion,” or “perspective.”

Id.

IV.      PLAINTIFFS HAVE FAILED TO ESTABLISH THAT THEY LACK AN
         ADEQUATE REMEDY AT LAW

         While Plaintiffs acknowledge they must establish that they lack an adequate remedy at

law (Pls. Br. at 14.), their legal analysis in this respect is limited to cursory statements related to

“the State’s Eleventh Amendment immunity to suits for damages.” (Pls. Br. at 49.) Plaintiffs’

10
  In fact, as it relates to matters concerning Act 10, both groups appear to share identical views. (Kusenberger Dec.,
¶ 12, Ex. V.)


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argument that the Eleventh Amendment prevents recovery of money damages misses the mark.

As a preliminary matter, the Eleventh Amendment applies only to claims against states and not

counties or municipalities. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280

(1977) (“The bar of the Eleventh Amendment to suit in federal courts extends to states and state

officials in appropriate circumstances, but does not extend to counties and similar municipal

corporations.”); Heiar v. Crawford County, 746 F.2d 1190 (7th Cir. 1984) (argument that “the

Eleventh Amendment immunizes [Wisconsin] counties from having to pay federal money

judgments, has no possible merit”). Despite Plaintiffs’ stated concerns regarding Eleventh

Amendment immunity, Wisconsin law includes various mechanisms for Plaintiffs to recover

money damages from the State, as well as municipal employers, in the event they prevail in this

action.

          Furthermore, Plaintiffs acknowledge that they and their members could pursue numerous

other avenues to obtain legal remedies, including the filing of workplace grievances, arbitration

and litigation. (Pls. Br. at 55.) In fact, many of the harms predicted by Plaintiffs could be

remedied by these mechanisms. For example, if union dues are not deducted and paid to the

unions, and the law is subsequently invalidated, the pre-existing labor laws and/or labor

agreements would be restored and the unions could pursue relief either under the grievance

procedures outlined in the existing labor agreements, or, if the agreements had expired, through

unfair labor practice or prohibited practice proceedings before the Wisconsin Employment

Relations Commission for violation of the status quo.

V.        PLAINTIFFS MISSTATE THE NATURE OF THEIR ALLEGED IRREPARABLE
          HARM.

          Plaintiffs assert three categories of irreparable harm in the event the Court denies their

request for a preliminary injunction: significant loss of revenue from dues income; loss of their



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status as bargaining representatives; and unilateral changes to their members’ terms and

conditions of employment. (Pls. Br. at 39-40.) The first two categories of alleged “harm” are

substantially a function of the divergent interests of the unions and their members, while the third

category relates to “harm” that is not irreparable because an adequate remedy exists.

Furthermore, the vast majority of the financial harms that Plaintiffs assert are based solely on

speculative, conclusory statements.

       A.      Much Of The Alleged Harm Plaintiffs Assert Is Offset By Commensurate
               Benefits To Plaintiffs’ Members.

       Much of the financial harm identified by Plaintiffs is predicated on the premise that their

respective members will not pay union dues in the absence of automatic payroll deductions. This

presumption is critical to Plaintiffs’ claims that they will suffer a “precipitous and drastic loss in

income . . . for the period of months” until alternate dues paying systems are installed (Pls. Br. at

41), and a permanent loss of twenty-five percent or more of Plaintiffs’ dues income (Pls. Br. at

42). No provision of Act 10 precludes Plaintiffs’ members from making dues payments or

otherwise financially supporting Plaintiffs’ activities. Thus, any reduction in dues income that

Plaintiffs experience will be a direct result of their respective members making individual

choices to forego paying their union dues. Furthermore, any resulting “harm” to Plaintiffs will

be offset by the financial benefits to those members, if any, that choose to refrain from paying

their union dues.

       The same is true of the risk Plaintiffs face that their respective members choose not to

recertify during the first round of recertification elections in October 2011.          Any current

bargaining representative that loses a recertification vote in October will do so because less than

fifty-one percent of its members will have voted to maintain the respective union as the

bargaining unit’s representative. The result will be that the bargaining units’ membership will



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obtain the representation (or lack thereof) that they collectively desire.                   Any “harm” that

Plaintiffs bear from such a result is directly offset by the benefit their current members receive

by not being required to be continually represented by a bargaining representative that they no

longer desire.

        Plaintiffs also fail to acknowledge that since Act 10 was enacted on March 11, 2011 (Pls.

Findings of Fact at 17), they have had more than three months to plan for the changes brought

about by Act 10, which they now ask the court to enjoin. Plaintiffs fail to give any meaningful

explanation as to why they have been unable during the past three months to arrange with their

members for regular payment of union dues. Furthermore, by the time the first round of

recertification elections occur in October 2011, Plaintiffs will have had over six months to

prepare for those elections. They fail to explain why a lead time of more than six months is

insufficient to allow them to communicate with their own members regarding the value of the

representation Plaintiffs provide their members.11

        Plaintiffs’ allegation that they will irreparably suffer a loss of goodwill due to a “no”

recertification vote suffers from the same flaw; any such loss of goodwill will flow from the

individual voting decisions of Plaintiffs’ members, not from Act 10. Plaintiffs rely on Girl

Scouts of Manitou Council, Inc. v. Girl Scouts of the USA, Inc., 549 F.3d 1079 (7th Cir. 2008) to

support their theory that such a loss of goodwill constitutes irreparable harm. The situation here

is completely different than the one faced by the local Girl Scout council in that case, because

here Plaintiffs’ members ultimately get to choose, through recertification votes, whether to keep

their current bargaining representatives. In Girl Scouts, the parent organization took action to

unilaterally reduce the geographic jurisdiction of the local council by more than half. Girl


11
  Plaintiffs also fail to explain how a six-month lead time constitutes the conduct of “electoral campaigns on very
short notice.” (Pls. Br. at 48.)


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Scouts, 549 F.3d at 1085. The result was a commensurate reduction in the local council’s

volunteers, donors and potential donors. Id. at 1088. It was the loss of these relationships that

the court found supported the conclusion that the local council would suffer irreparable harm in

the form of reduced goodwill. Id. at 1089. In contrast, Act 10 does not require Plaintiffs to sever

relationships with any of its members. If those relationships are eventually severed, it will be as

a result of Plaintiffs’ members’ choices as reflected in the results of recertification elections.

       B.      The Loss Of Collective Bargaining Privileges Does Not Constitute Per Se
               Irreparable Harm.

       Plaintiffs allege that any temporary loss of collective bargaining rights constitutes

irreparable harm. (Pls. Br. at 52.) However, the cases they cite for this proposition bear no

relationship to the Wisconsin legislature’s decision to revise the panoply of collective bargaining

privileges afforded public employees under state law. Instead, all of the cited cases address

private employers that were alleged to have engaged in significant union busting activities in

violation of federal labor laws. For example, NLRB v. Electro-Voice, Inc., 83 F.3d 1559 (7th Cir.

1996), involved a private manufacturer that took various actions after a group of employees

began union organizing activities at one of its plants.           The employer’s actions included

threatening to close the plant and move related production activities from Indiana to Texas,

questioning employees about union activity and firing the union organizers. Id. at 1564-65. In

deciding whether injunctive relief was appropriate, the Electro-Voice Court noted that “years

may pass before the [National Labor Relations] Board reaches the merits of a case. As time

passes, … the likelihood that the employees will be irreparably deprived of union representation

increases.” Id. at 1573.

       It was only in this context of apparent private union busting activity followed by the

prospect of years of delay while NLRB processed the matter that the court noted, as Plaintiffs



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cite, that “[t]he deprivation to employees from the delay in bargaining and the diminution of

union support is immeasurable.” Id. The same is true of the other two cases Plaintiffs cite for

the same proposition. See Lineback v. Spurlino Materials, LLC, 546 F.3d 491 (7th Cir. 2008)

(affirming a preliminary injunction where the employer purposefully dragged out negotiations

over the initial collective bargaining agreement and manipulated work assignments to punish

union organizers); Bloedorn v. Francisco Foods, Inc., 276 F.3d 270 (7th Cir. 2001) (finding an

injunction necessary where a successor-employer purposefully chose not to hire employees of its

predecessor company in order to avoid bargaining with the union that represented the former

employees). There simply is no correlation between Act 10 and the oft-cited desire to ensure

that “an unfair labor practice will not succeed because the Board takes too long to investigate and

adjudicate the charge.” Electro-Voice at 1574 (quoting NLRB v. California Pac. Med. Ctr., 19

F.3d 449 (9th Cir. 1994)).

       C.      The Alleged Constitutional Violations Do Not Constitute Per Se Irreparable
               Harm.

       Plaintiffs argue that constitutional violations are per se irreparable. (Pls. Br. at 44.)

Although this may be true for certain First Amendment violations, it is not necessarily true for

alleged violations of other constitutional provisions.      Great Lakes Higher Educ. Corp. v.

Cavazos, 698 F. Supp. 1464, 1474 (W.D. Wis. 1988) (declining to "establish a rule that the

allegation that money has been taken in violation of the due process and equal protection clauses

constitutes irreparable injury as a matter of law”).      Moreover, Plaintiffs’ purported “First

Amendment” claim is actually a straightforward claim for money damages. Even if the Court

accepts Plaintiffs’ premise that Act 10 deprives plaintiffs a subsidy that it could use to pay for

speech, it is not genuinely disputed that Act 10 (unlike some of the cases cited by Plaintiffs) does

not actually prohibit Plaintiffs from speaking. Nothing in Act 10 will necessarily result in less



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speech; in fact, even in the face of Act 10, Plaintiffs could spend more money on speech by

diverting other resources toward this political activity. They could, for example, move into less

expensive office space. Although Plaintiffs may not want to face the choice between office

space and political speech, that, standing alone, does not transform their run-of-the-mill claim for

money damages into irreparable harms under the First Amendment.

       D.      Plaintiffs Fail To Properly Support Their Claims Of Potential Bankruptcy.

       Plaintiffs suggest that, absent preliminary injunctive relief, they will be forced into

bankruptcy, which constitutes irreparable harm. (Pls. Br. at 42.) Plaintiffs, however, fail to offer

sufficient evidence to support this speculative eventuality. See Instant Air Freight Co. v. C.F. Air

Freight, Inc., 882 F.2d 797, 802 (3d Cir. 1989) (holding that it was an abuse of discretion for the

district court to determine that the applicant for an injunction would be forced out of business

without financial statements or projections to support its determination); Newlife Homecare, Inc.

v. Express Scripts, Inc., No. 07cv761, 2007 U.S. Dist. LEXIS 33031, at *13 (M.D. Penn. May 4,

2007) (“It is evident . . . that the law requires convincing proof that a business will in fact cease

to exist or be forced into bankruptcy for such an eventuality to be considered irreparable harm.”)

Plaintiffs fail to provide financial statements and projections to show Act 10 will force them into

bankruptcy. Instead, they rely on conclusory affidavits, which state that they will suffer various

forms of financial harm absent an injunction. This evidence, however, is insufficient to prove

Plaintiffs’ eventual bankruptcy or otherwise establish irreparable harm. See id.

VI.    THE STATE AND THE PUBLIC INTEREST WILL SUFFER GREAT
       IRREPARABLE HARM BY THE ISSUANCE OF A PRELIMINARY
       INJUNCTION

       By asking the Court to enjoin the enforcement of certain sections of Act 10, Plaintiffs

seek to delay the effectiveness of a duly enacted legislative act. If granted, the preliminary

injunction itself would do irreparable harm to the State, because “any time a state is enjoined by


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a court from effectuating statutes enacted by representatives of its people, it suffers a form of

irreparable injury.” New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)

(Rehnquist, Circuit Justice). Thus, while the Court may have discretion in the proper case to

enjoin enforcement of a presumptively valid state statute, “no such injunction ought to be

granted unless in a case reasonably free from doubt, and when necessary to prevent great and

irreparable injury.” Cavanaugh v. Looney, 248 U.S. 453, 456 (1919) (citation omitted). Indeed,

judicial power to stay an act of the legislature, like the power to later declare that act

unconstitutional, “calls for the utmost circumspection in its exercise” – especially where, as here,

a single member of the judiciary is asked to delay the will of the legislature to put its duly

enacted policies into effect at the time it desires to do so. Turner Broad. Sys., Inc. v. FCC, 507

U.S. 1301, 1303 (1993) (Rehnquist, Circuit Justice) (citation omitted) (refusing to enjoin

enforcement of a presumptively constitutional statute even where the Supreme Court would later

declare the act in violation of the First Amendment to the United States Constitution). Almost

all laws have impact on some group or another. However, there is no reason to distrust the

legislature’s conclusions that the gains from swift effectiveness of a duly enacted statute

outweigh these potential impacts. See id. No federal rule requires a court to displace the

legislature’s choice of an effective date until all judicial challenges to the law in question have

been resolved, yet that is precisely what Plaintiffs seek.

       The State of Wisconsin will suffer additional irreparable harm by an injunction, as it will

be subjected to the prospect of unfair labor practice complaints by Plaintiffs. In fact Plaintiff

Council 24 filed such a Complaint in February 2011, alleging that the State’s refusal to bargain

collectively is an unfair labor practice. (Kusenberger Decl. ¶¶ 19-20, Ex. R, S.) Furthermore, as

noted below, the injunction Plaintiffs seek would result in a collective bargaining environment




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for most public employees in which no subject would be a prohibited subject of bargaining,

which is a result the legislature has never endorsed.

       In addition to the harm to the State, a preliminary injunction would cause irreparable

harm to a multitude of non-parties, including nonmembers who were formerly subjected to fair

share payments and non-state public sector employers.

       If Plaintiffs succeed in obtaining the preliminary injunction they seek, numerous public

employees that are not union members will be required to make fair-share payments against their

will. Under current law, as amended by Act 10, those nonmembers have no legal obligation to

make such fair-share payments, yet Plaintiffs seek to effectively obtain court-ordered payroll

deductions to divert funds from these nonmembers to Plaintiffs. Once the injunction is lifted,

these nonmembers will have no legal remedy to obtain reimbursement of these funds.

       Like the State, public employers all across Wisconsin will be subject to liability for

failing to bargain in good faith in the event Plaintiffs obtain the injunction they seek. This

concern is not merely speculative; the union that represents teachers in the Middleton-Cross

Plains School District filed just such an action on March 28, 2011. (Kusenberger Decl., ¶¶ 21-

22, Ex. T, U.) The complaint alleged that the school district failed to bargain in good faith by

not agreeing to reach agreement on an extension of the current labor agreement that is set to

expire at the end of June 2011.

       Granting an injunction will also create a chaotic environment for all municipal employers

that have either expired or expiring labor contracts. The injunction Plaintiffs seek would require

WERC to conduct its activities as if certain provisions of Act 10 were not in effect. Thus, a local

bargaining unit could file a grievance or complaint with WERC alleging that a municipal

employer has refused to bargain in good faith or has unilaterally imposed changes, all as




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authorized by Wisconsin law, as amended by Act 10. Under the injunction, WERC will proceed

to adjudicate the grievance as if Act 10 was ineffective (Motion for Temporary Restraining

Order and/or Preliminary Injunction, Dkt. # 11 (hereinafter “Pls.’ Motion”), p. 2), despite the fact

that the municipal employer has the lawful authority to act unilaterally. The employer will need

to subject itself to WERC’s proceedings, notwithstanding the employer’s lawful authority

pursuant to state law as amended by Act 10, and then challenge the WERC ruling in state court

where the employer will – for the first time – be able to meaningfully present its defense that

Wisconsin law (1) does not require it to honor expired contracts and (2) prohibits the employer

from bargaining with the local bargaining unit over a new contract, except as to base wages. The

potential cumulative costs to public employers of addressing such grievances is incalculable.

VII.    PLAINTIFFS SEEK TO ALTER THE STATUS QUO, NOT MAINTAIN IT, BY
        ASKING FOR A REMEDY THAT WILL RESULT IN A COMPLETELY NEW
        SET OF COLLECTIVE BARGAINING STATUTES

        Despite their repeated protestations that all they seek is the return to the former collective

bargaining system, the injunction Plaintiffs request, if granted, will result in a new collective

bargaining regime. In many respects, the result Plaintiffs seek will not restore parity between the

collective bargaining privileges granted the general employees and those granted public safety

employees. Instead, by selectively choosing only specific sections of Act 10 that are subject to

judicial intervention, Plaintiffs seek to create out of whole cloth new bargaining privileges that

no public sector bargaining units have ever enjoyed.          This far exceeds the purpose of a

preliminary injunction, which is to preserve the status quo. EEOC v. City of Janesville, 630 F.2d

1254, 1259 (7th Cir. 1980).

        Plaintiffs have painstakingly reviewed Act 10 and the impacts it has had on Wisconsin’s

former collective bargaining laws. The depth of their review and analysis is evidenced by the

fact that they created what they purport to be as-amended copies of the relevant provisions of


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WEPA, MERA and SELRA. (Hawks Aff. 16-18, ¶¶ 16-18, Ex's. N, O, P.) Plaintiffs have also

carefully identified those very specific provisions of Act 10 that they “seek to have enjoined on a

provisional basis.” (Pls.’ Motion, p. 1-2.) By cherry-picking specific provisions of Act 10, and

leaving intact other related provisions that are necessarily interwoven with those same sections,

Plaintiffs attempt to create for general employees, and only general employees, expanded

bargaining privileges.

       For example, with respect to MERA, various paragraphs of former Wis. Stat. § 111.70(4)

dictated certain prohibited subjects of bargaining. Section 111.70(4)(m) identified subjects on

which school district municipal employers were prohibited from bargaining.                 Section

111.70(4)(mc) identified prohibited subjects of bargaining applicable to municipal employers.

Act 10 addressed these provisions as follows:

           x   Section 245 of Act 10 created new § 111.70(4)(mb), which identifies prohibited

               subjects of bargaining that applies to “all bargaining units containing a general

               municipal employee. . . .”

           x   Section 246 of Act 10 amended § 111.70(4)(mc) [the former municipal employer

               paragraph] so that it now applies when municipal employers bargain “with a

               collective bargaining unit containing a public safety employee . . . .”

           x   Section 244 of Act 10 repealed § 111.70(4)(m) [the former school district

               employer paragraph], as unnecessary, since school district employers are

               addressed by the newly created paragraph (mb).

       Of these three, consecutive provisions of Act 10, Plaintiffs seek to enjoin the

implementation of only one – Section 245, which delineates the prohibited subjects of bargaining

when a “general employee” bargaining unit is involved – while leaving intact the other two




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changes effected by Act 10. (Pls.’ Motion, p. 1-2). The end result Plaintiffs’ selective request

for an injunction is not a return to the pre-Act 10 bargaining scheme. Instead, Plaintiffs’ would

grant greater bargain power than they enjoyed prior to the adoption of Act 10 because, in cases

where there were no Public Safety Employees in the bargaining unit, there would be no

prohibited subjects of bargaining between municipalities and school districts and their unions.

Plaintiffs seek to create similar results under SELRA as well. The court has now way of

knowing what other collective bargaining law revisions Plaintiffs seek to create through their

request, in which Plaintiffs attempt to use the preliminary injunction process as an opportunity to

assert partial veto authority over a duly enacted legislative act.        Plaintiffs’ request for a

preliminary injunction should be denied on this basis alone, because Plaintiffs impermissibly ask

the court to fundamentally alter the status quo.

VIII. THE BALANCING OF INTERESTS FAVORS THE STATE

        The court’s balancing of interests must account for the heightened standards applicable to

this case. First, Plaintiffs bear a “heavy burden” to show that no conceivable rational basis exists

for the legislature’s choice. Faheem-El v. Klincar, 841 F.2d 712, 727 (7th Cir. 1988). Second,

courts are to use “the utmost circumspection” when asked to enjoin the enforcement of a duly

enacted state statute. Turner Broad., 507 U.S. at 1301. These two principles, if they are to have

any meaningful application, weigh heavily in favor of denying Plaintiffs’ injunction request.

The balancing of interests, in which the harm to the Plaintiffs in denying injunctive relief is

compared to the collective harm to the State and the public interest in the event injunctive relief

is granted, tips heavily in favor the State’s interests.

        As explained above, Plaintiffs cannot show a likelihood of success on any of their claims,

they have overstated their claims of irreparable harm and they have failed to provide adequate

evidentiary support for those claims, they have adequate legal remedies available to them and


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they seek to alter the status quo. On the other hand, the State will suffer irreparable harm if the

Court interferes with the legislature’s decision to establish the effective dates of the various

provisions of Act 10, and the State and numerous non parties will suffer irreparable harm if the

enforcement of Act 10 is delayed as requested by Plaintiffs. Accordingly, Plaintiffs’ request for

injunctive relief should be denied.

                                          CONCLUSION

       For the foregoing reasons, Defendants respectfully request that the Court deny Plaintiffs’

motion for a TRO and/or preliminary injunction.

       Dated this 27th day of June, 2011.

                                               MICHAEL BEST & FRIEDRICH LLP

                                                 /s/ Eric M. McLeod
                                               Eric M. McLeod
                                               Joseph Louis Olson
                                               Michael P. Screnock
                                               One South Pinckney Street, Suite 700
                                               Post Office Box 1806
                                               Madison, WI 53701-1806
                                               Phone: 608.257.3501

                                               Co-Counsel for Defendants Scott Walker,
                                               Governor of the State of Wisconsin, Michael
                                               Huebsch, Secretary, Department of Administration
                                               and Gregory Gracz, Director, Office of State
                                               Employee Relations

                                               J.B. VAN HOLLEN
                                               Attorney General
                                               David C. Rice
                                               Assistant Attorney General
                                               Steven C. Kilpatrick
                                               Assistant Attorney General
                                               Wisconsin Department of Justice
                                               Post Office Box 7857
                                               Madison, WI 53707-7857
                                               Phone: 608.266.1792

                                               Co-Counsel for all Defendants


                                                 38

				
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