Judge Strikes Down Wisconsin Collective Bargaining Law

Several months after putting the law on hold, a trial court Judge in Wisconsin has struck down the Badger State’s new collective bargaining law because the legislature failed to comply with the Open Meetings Law while debating it:

Wisconsin’s law taking away nearly all collective bargaining rights from most public workers was struck down Thursday by a circuit court judge but the ruling will not be the final say in the union fight that brought tens of thousands of protesters to the Capitol earlier this year.

The state Supreme Court has scheduled arguments for June 6 to decide whether it will take the case and Republicans who control the Legislature could also pass the law a second time to avoid the open meeting violations that led to the judge’s voiding the law Thursday.

Gov. Scott Walker pushed for the law as a way to help balance the state budget. His spokesman had not seen the ruling and had no immediate comment. Spokesmen for Republican leaders in the Legislature also did not immediately return messages seeking comment.

Walker and Republican leaders have said they would pass the law again as part of the state budget next month if necessary.

Of course, doing so would likely reignite the public debate and protests we saw earlier this spring, and might even cause the Senate Democrats to skip out of town once again to prevent the body from reaching a quorum. Additionally, there are not several Senate Republicans facing recall elections later this year because of the movement that grew to protest this law and any effort to bring this issue back before the legislature is likely to cause them problems come election time.

Not being at all versed in Wisconsin law, I’m not going to comment on the merits of Sumi’s decision. However, it is worth noting that the decision does point out again the importance of the recently concluded race for Wisconsin Supreme Court. While there’s no guarantee that Justice Prosser will vote to uphold the law, he does seem more inclined to do so than MaryAnn Kloppenberg would have been. As always, stay tuned.

Update: Here’s a discussion between Wisconsin radio host Charlie Sykes and Marquette University Law Professor Rick Esenberg discussing the ruling, it’s legal merit or lack thereof, and where the case goes from here.

In the meantime, here is the text of the opinion:

Wisconsin et al v. Fitzgerald et al


FILED UNDER: Law and the Courts, US Politics, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Herb says:

    However, it is worth noting that the decision does point out again the importance of the recently concluded race for Wisconsin Supreme Court.

    Maybe…but it seems to me that if the law clearly says “You must do X before holding a vote” and the X part never happened, then even a judge sympathetic to the Walker position would have to rule against it.

    Here’s a document which explains how to comply with the Open Meeting law

    The chief presiding officer of a governmental body, or the officer’s designee, must give notice of each meeting of the body to: (1) the public; (2) any members of the news media who have submitted a written request for notice; and (3) the official newspaper designated pursuant to state statute or, if none exists, a news medium likely to give notice in the area. Wis. Stat. § 19.84(1).

  2. Chad S says:

    I thought Dodd assured us that the Gov/GOP would easily win this case because they had all the law on their side?

  3. Jay Tea says:

    The Republican argument seems to be that it was a special session, and special sessions have special rules, and the law cited only covers regular sessions.

    Practically speaking, does anyone want to argue that the Democrats did NOT know the vote was going to happen? That they had no idea what was going on back in their home state?

    I’d say that the spirit of the law was more than adequately honored. As for the letter… well, we’ll see whose lawyers can beat up whose lawyers.


  4. Herb says:


    The first page of the ruling says: “The State has shown by clear and convincing evidence that the March 9, 2011 meeting of the Joint Committee of Conference violated the Open Meetings Law.”

    No mention of this special session stuff….

    Your second statement about the timing of the vote….if I remember correctly, it was strategically timed to make sure no Democrats were in the room to stop it. So yes….I’ll argue the Dems didn’t know the meeting was going to happen. That was the whole point, man.

  5. Jay Tea says:

    Herb, the vote was held back because the Democrats had left the state, and refused to come back. I don’t quite know how that escaped you, but it kinda did happen that way.

    And I’m not interested in arguing the merits of the case, just noting that it’s certainly arguable — as evinced by the fact that they’re arguing about it.

    It’s gonna end up in the state’s Supreme Court regardless. And too bad the unions couldn’t buy that seat for their pet candidate…


  6. From what I’ve read about this there is a good possibility that Sumi is incorrect in applying the Open Meetings Law to the legislature. That is likely to be the issue on appeal.

  7. An Interested Party says:

    And too bad the unions couldn’t buy that seat for their pet candidate…

    Oh? So the seat was already bought by the corporations for their pet candidate…

  8. Herb says:

    “there is a good possibility that Sumi is incorrect in applying the Open Meetings Law to the legislature. “

    That’s probably going to be the basis of appeal, but I think they’re going to have to be careful.

    From the compliance guidelines from Wisconsin’s DOJ:

    Generally speaking, the open meetings law applies to the state Legislature, including the senate, assembly, and any committees or subunits of those bodies. Wis. Stat. § 19.87. …..
    The open meetings law also does not apply where it conflicts with a rule of the Legislature, senate, or assembly. Wis. Stat. § 19.87(2).

    Sounds like they better hope for a rule conflict.

  9. Chad S says:

    Just pass the law again in compliance with the open meetings laws.

  10. Syte says:

    More delay tactics by Democrats…
    Meanwhile, collective bargaining has been used to eclipse children’s rights — the balance needs to be restored.

    The impact of Collective Bargaining on Teacher’s Rights and Children’s Rights. What is Fair?