MADISON, Wis. — The Republican-controlled Wisconsin Legislature on Tuesday asked that a liberal state Supreme Court justice step aside in a pending case that seeks to overturn a 2011 law that effectively ended collective bargaining for most state workers.
If Justice Janet Protasiewicz agrees not to hear the case, the court would be deadlocked 3-3 between liberals and conservatives. The lawsuit has massive implications for union rights in the battleground state, the court would be deadlocked 3-3 between liberals and conservatives.
A Dane County Circuit judge last month overturned the bulk of the law, saying it violates equal protection guarantees in the Wisconsin Constitution by dividing public employees into “general” and “public safety” employees. Under the ruling, all public sector workers who lost their collective bargaining power would have it restored to what was in place before 2011.
The judge put the ruling on hold pending the appeal. School workers unions that brought the lawsuit have asked the Supreme Court to take it directly, skipping the appeals court. The Wisconsin Supreme Court, controlled 4-3 by liberals, has not yet decided whether to take the case.
Republicans enacted the law in the face of massive protests 14 years ago that made Wisconsin the center of the national fight over union rights. The debate also catapulted then-Gov. Scott Walker onto the national stage, sparked an unsuccessful recall campaign and laid the groundwork for his failed 2016 presidential bid. The law’s adoption led to a dramatic decrease in union membership across the state.
Protasiewicz is the court’s newest member and ran in 2023 as an opponent of the union law, known as Act 10. Her victory gave liberals the majority on the court for the first time in 15 years. That majority is on the line again in the April 1 Supreme Court election to fill the seat of a retiring liberal justice.
Protasiewicz said during the campaign that she believes Act 10 is unconstitutional. She also told the Milwaukee Journal Sentinel that she would consider recusing herself from any case challenging the law. Protasiewicz participated in protests against it and signed the petition to recall Walker.
The Legislature’s top Republicans, Senate Majority Leader Devin LeMahieu and Assembly Speaker Robin Vos, said Tuesday that it would be “right and ethical” for her to step aside.
Protasiewicz did not return an email from The Associated Press asking if she would recuse herself, a decision that is entirely hers.
She is not the only justice on the court with a potential conflict.
Conservative Justice Brian Hagedorn was Walker’s chief legal counsel and had a role in drafting Act 10. During his successful run for the court in 2015, Hagedorn would not promise to recuse himself if a case challenging Act 10 came before the court.
No request has been filed for Hagedorn to step aside.
If both Protasiewicz and Hagedorn recused themselves, liberals would have a 3-2 advantage.
The attorney for the unions that brought the lawsuit did not immediately return a message seeking comment.
Supporters of the law have said it provided local governments more control over workers and the powers they needed to cut costs. Repealing the law, which allowed schools and local governments to raise money through higher employee contributions for benefits, would bankrupt those entities, backers of Act 10 have argued.
Democratic opponents argue that the law has hurt schools and other government agencies by taking away the ability of employees to collectively bargain for their pay and working conditions.
