When Dane County Circuit Court Judge Juan Colas ruled parts of Act 10 unconstitutional, Gov. Scott Walker pushed the easy and predictable rhetorical button. Colas, the governor charged, was a "liberal Dane County activist judge."
When I was mayor we had several cases before Judge Colas. He was always regarded as thorough, fair and thoughtful even when he ruled against us. (Though I always thought he was more thorough, more fair and even more thoughtful when he ruled for the city.)
And as for being a liberal activist, much of the left in this town was unhappy with Colas when he ruled that the city council was within its power to overrule a Landmarks Commission decision that would have killed the Edgewater Hotel project.
In his Act 10 decision Colas accepted some of the arguments made by the Cullen Weston Pines & Bach law firm on behalf of their union clients while rejecting others. But those he accepted are fundamental constitutional issues that will certainly get this case to the state Supreme Court and possibly to the highest court in the land.
The judge ruled that Act 10 - which limits collective bargaining for most public employees - violated rights to free speech and association as well as the right to equal protection of the laws. For what it's worth, it looks to this non-lawyer that some court will grant a stay of the Colas decision, followed by the court of appeals upholding most or all of it, only to be overturned by the state Supreme Court. In summary: we won, we'll lose, we'll win and we'll lose again.
Lawyers I contacted who were well versed in this and related cases said that my take on what happens next is as plausible as any, though they weren't in the business of making these kinds of guesses. (As a blogger I am in the business of making predictions. And I'm good at it. For example, in July I pronounced the Brewers done for the season. That held up pretty well, don't you think?)
Why do I think Colas' ruling is valid but will still be overturned at the Wisconsin Supreme Court? Have you heard of the Wisconsin Supreme Court? Have you ever watched All Star Wrestling? It's kind of like that, but with less colorful costumes.
Still, at least some lawyers close to the case think that a couple of the conservative justices might actually look at the merits of the case and not just the politics of following the governor. These are better, less cynical people than I am, and I hope they're right.
But even if the Colas decision is overturned by our state's top court, it might not be the end after all. Because Judge Colas ruled on fundamental constitutional questions in a high-profile case, there's some chance that the United States Supreme Court would review it. And if that happens nobody can predict what the newly exciting Roberts Court might do. The health care ruling infuriated conservatives and baffled liberals as Roberts went out of his way to find a constitutional basis to uphold the law.
But wait, there's even more. There are actually two more lawsuits out there in addition to the appeals that will play out from the Colas decision. There is a federal district court decision from March, now on appeal, which dealt with some but not all of the issues that were before Colas. And there is another case in front of the same judge, more like the state case, which argues that the law must be held to a stricter standard.
Colas said that a higher standard called "strict scrutiny" applied here because basic constitutional rights were at stake. Because of that, the law can't just meet the lower standard of having a "rational basis." The federal court, in the March ruling now on appeal, found some fault with different aspects of the law, but didn't apply the higher standard. The same federal court is now considering another case that argues that the strict scrutiny theory that Colas found persuasive should apply there as well.
Whatever happens in the courts, my take is that it will end there. It seems unlikely that, regardless of what kinds of defects (if any) the courts settle on, this will ever come back before the Legislature. The reason the law was rushed through in the first place is that Republican votes in the Senate were slipping. And no matter what happens in November, it's unlikely that the GOP will enjoy more than the slimmest of margins in that house.
While it's possible that when all this gets sorted out the law could be saved with some fairly simple legislative fixes, I doubt that there would be any appetite among politicians to revisit it.
How it ends up in the courts of the land is how the law is likely to stand. And given all of the questions to be litigated, I would expect a long road and an unpredictable final destination.
Dave Cieslewicz is the former mayor of Madison. He blogs as Citizen Dave.
