Dane Co. judge who signed recall petition expected to rule on lawsuit challenging Act 10

Act 10 protests at the Wisconsin Capitol in 2011. (Photo by Emily Mills)

A Dane County judge is expected to rule on whether a lawsuit challenging Act 10 — the controversial law that effectively ended collective bargaining rights for public employees — should be allowed to continue after hearing oral arguments on Tuesday.

The law has seen previous challenges, however this lawsuit is the first against the law since liberals gained control of the state Supreme Court last year.

Dane County Judge Jacob Frost heard the arguments in the case, in which a number of public employees and unions are challenging the constitutionality of the law because it excluded unions representing public safety employees including  police  and firefighters.

Act 10 was engineered by former Republican Gov. Scott Walker and legislative Republicans. Done in the name of balancing the state budget, the law along with a later  right-to-work measure for private sector employees, decimated the power of unions in Wisconsin.

“Act 10 had, as its stated purpose, to assist with budget balancing,” Frost said during Tuesday’s arguments. “And the issue that seems to be in front of me is not at all whether the Legislature can issue laws to help control budgets. Of course they can. It seems to be the decision to say, there’s a category of people that are so important that we’re taking them out of that policy purpose, for whatever reason. And that’s what they did (with) the public safety group … Because the truth is if they only wanted to balance the budget they wouldn’t have exempted anyone.”

An attorney for the group bringing the case argued that the distinction between employee groups renders the law unconstitutional.

“The distinction Act 10 created between these groups of employees lacks a rational basis. and for that reason violates (the state Constitution),” attorney Jacob Karabell argued Tuesday.

But Misha Tseytlin, an attorney for the Legislature arguing for the lawsuit’s dismissal, said that the issue has already been settled by prior precedent and that the lawsuit is debating “minutia.”

“This court can inquire whether it is rational to have a public safety group and a general employee group, and I think that has already been answered by binding Wisconsin precedent (in previous litigation),” Tseytlin argued.

Frost’s presence on the case has drawn criticism. After the law was passed, a recall election was held against Walker, who became the first governor in U.S. history to survive a recall attempt. On Tuesday conservative talk radio host Dan O’Donnell reported that Frost had apparently signed the petition to force the recall in 2011. AP and the Milwaukee Journal-Sentinel also picked up the story.

On Wednesday, Gov. Tony Evers dismissed calls for Frost’s recusal from the case, saying people should let the process “play out.”

“Recusal is kind of a death knell of the judiciary. Let’s just let it play out,” Evers said at an event in Madison.

Supreme Court Justice Janet Protasiewicz, who was elected last April, giving liberal justices a majority on the Court, has previously told the Journal-Sentinel that she would consider recusing herself in a case challenging Act 10 because she marched in protests against the law and signed the recall petition against Walker. “Would I recuse myself? Maybe. Maybe, but I don’t know for sure,” she said.

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