By Patrick Marley of the Journal Sentinel
Madison — The state Appeals Court on Monday kept in place for now a ruling finding Gov. Scott Walker's labor commissioners in contempt of court.
The ruling by the District 4 Court of Appeals in Madison means that, at least for the time being, the Wisconsin Employment Relations Commission cannot enforce aspects of Act 10, the 2011 law by Walker that greatly restricted the ability of public workers to engage in union activities.
Monday's ruling shifts attention to the state Supreme Court, which will hear oral arguments in the underlying case Nov. 11. The high court is expected to rule on the case by next summer, though it could address some or all of the issues in the case much more quickly.
Dane County Circuit Judge Juan Colás last year found Act 10 was unconstitutional for teachers and local government workers, saying it violated their guarantee of equal protection under the law and infringed on their freedom-of-association rights.
Last month, he found Walker's two labor commissioners in contempt of court because they had not followed his earlier ruling. That led the Wisconsin Employment Relations Commission to cancel union certification elections that had been scheduled to begin last week.
Attorney General J.B. Van Hollen asked the Court of Appeals to stay the contempt ruling and separately asked the Supreme Court to stay the 2012 ruling that found Act 10 unconstitutional.
The Court of Appeals declined to issue an immediate stay Monday as it considers the case, saying that there was not a showing of a strong likelihood the commissioners would overturn the contempt ruling on appeal.
The appeals court had taken up aspects of the case earlier and in March declined to issue a stay of the original ruling that found Act 10 unconstitutional. In its decision then, the Court of Appeals acknowledged circuit court orders did not have the precedential effect of rulings by higher courts, writing, "We reject out of hand the proposition that the circuit court's decision has the same effect as a published opinion of this court or the Supreme Court."
Van Hollen has seized on that wording in attempting to show the commission could continue to enforce Act 10 for most unions. But the Court of Appeals on Monday wrote, "The commissioners read too much into our sentence. The full footnote makes clear that we were addressing whether there could be any argument that the circuit court's decision here was binding on other courts."
The appeal of the contempt ruling can continue before the Court of Appeals but may wind up advancing more quickly before the Supreme Court. The commissioners have until Tuesday to appeal Monday's ruling before the Supreme Court, according to a schedule the high court set last week.
Even before the latest round of wrangling, Van Hollen already had appealed the underlying decision, and the Supreme Court had agreed to take it. What he sought with his latest filing was a stay that would allow Act 10 to go into place as the high court decides whether the law is constitutional.
In the short term, Monday's ruling continues to block union certification elections that would have determined whether unions could negotiate labor contracts with schools and local governments. With Monday's ruling, the unions can continue to engage in those negotiations.