Gov. Walker: Judge's Ruling on Act 10 'Fundamentally Flawed'

Gov. Scott Walker talks about the Dane County judge's ruling on the state's collective bargaining law during this week's radio address.

The state partnered with the Wisconsin Broadcasters Association to produce and distribute brief radio address once a week.  Audio files and a written transcript of this radio address can be accessed on http://www.wi-broadcasters.org and http://walker.wi.gov/Weekly-Radio-Addresses.  To download an mp3 file, you can right click the radio address link and click “save link as.”

Hi, this is Scott Walker.

As you may have heard, recently, a Dane County judge in Madison issued a ruling that struck down key provisions of the budget reforms enacted late last year.  We are confident this ruling will be overturned because Act 10 is constitutional.  This would not be the first time a Dane County judge's decision on Act 10 was held to be wrong by a higher court.

Since enacting the reforms contained in Act 10, taxpayers have saved more than one billion dollars, property taxes on a median value home have decreased for the first time in twelve years, we balanced a $3.6 billion budget deficit at the state level without increasing taxes, and government services have improved.

This week, Attorney General J.B. Van Hollen filed a brief seeking a stay of the ruling, which would help keep Act 10 in place, until the appeals process is complete.

Independent legal experts and those from both sides of the aisle already noted the judge’s ruling is fundamentally flawed and pointed out that seeking a stay is the reasonable course of action, given the confusion caused by the judge’s flawed ruling.

While we are confident the law will be upheld, if the current ruling on Act 10 stands, it would result in public employee layoffs, increased debt for local units of government and school districts, and it could return us to a system where a handful of special interests control huge portions of our government budgets.  This ruling strips power from local elected and school board officials and reduces their ability to effectively manage their budgets.

Voters spoke more than two years ago about the need to reform government, reduce spending, and balance our budget.  The voters reaffirmed their decision on June 5 of this year. 

When this ruling is overturned the reforms will continue to be enacted, we will continue down the path of balanced budgets, and we’ll be able to focus on helping the people of our state create more jobs.

Geoff Tolley September 24, 2012 at 06:02 AM
Your references to cases that "will be overturned on appeal" are clearly nothing but fluff opinion. In the OML case before Judge Sumi, I'm not sure what you expected her to do differently. The Supreme Court, after all, did not disagree with any of her findings of fact, or her finding that the Open Meetings Law was violated. Her injunction against Act 10 was lifted by them only because they came up with the doctrine that the Law does not apply to the legislative process. That is a *damn* sweeping thing, and it is most certainly not a Circuit Court's job to come up with such things. The Open Meetings Law was violated, and the Supreme Court /did not disagree with that assessment/. Sumi applied the law rather than coming up with a new, dangerous doctrine. And this new doctrine is damn dangerous if you stop to think about it: what is now to stop a legislative majority that isn't unified on an issue from suddenly and without notice convening to pass a bill anyway? Such behavior is now condoned by the Wisconsin Supreme Court.
Keith Best September 25, 2012 at 11:58 AM
Civics 101--The Assembly writes a bill and if it passes it goes to the senate. If the senate passes it, it goes to the governor for signature. If the governor signs it, it becomes law. If a Republican governor signs it, a liberal activist judge from Dane County rules against it. There is something wrong with this...........................
Geoff Tolley September 25, 2012 at 05:39 PM
You can't possibly fail to realize that everyone considers "liberal activist judge" to be a synonym for "I don't understand the reasoning behind this decision that I disagree with sufficiently in order to form a coherent argument against it so I'll call judges names instead" No, judicial activism is when a judge will create entire new statutes themselves rather than measure the case before them against the law. See: Citizens United (the SCOTUS going far further than the case before them); Waukesha County's Judge Mac Davis extra-statutory ruling that shifted the costs of challenging recall signatures from the Scott Walker campaign onto taxpayers (later vacated by the Court of Appeals but not before taxpayer money had to be spent to accommodate it). I've commented above about how some like to call Dane County's Judge Sumi a "liberal activist judge" for /failing/ to be sweepingly activist. You are, however, correct that "there is something wrong with this". If Walker could have been bothered paying attention to the law and Constitution (or gotten better advice than Van Hollen's) before signing, he'd have a lot fewer problems now. Each section of Act 10 that was voided on Constitutional grounds would have been removed by between 3 and 5 different Democratic amendments. But it had to be Walker's way or the highway, and now suddenly no amount of taxpayer expenditure (on legal bills) is too much to support this hubris.
James R Hoffa September 25, 2012 at 06:10 PM
@Geoff Tolley - 1) You're correct in that Hoffa is merely speculating that higher courts will overturn many of the decisions made by Dane County Judges on Walker's initiatives. 2) The State Supreme Court did not create new doctrine out of thin air - they merely interpreted pre-existing law. If Sumi was a competent jurist, as opposed to a partisan, she would have come to the same conclusion under the same law and arguments made.
James R Hoffa September 25, 2012 at 06:19 PM
@Geoff Tolley - If Colas had more convincing precedent than that which he used in his decision, don't you think he would have provided such in his decision? Sorry that Hoffa doesn't have the time to do Colas' job for him. Even under the precedent provided, Hoffa showed how Colas' interpretation of Act 10 is faulty and how his reasoning used to reach the conclusions he made were faulty. Although Hoffa previously agreed with you concerning the matter of wages, he no longer does, as wages above and beyond the CPI could be negotiated individually and contained in the individual contract - remember merit based pay? Act 10 will be fully restored from Colas' decision by the appellate level courts - of this Hoffa has very little doubt.
Dorothy September 26, 2012 at 04:12 PM
GREAT JOB SCOTT WALKER!!! KEEP FIRM -- STAND YOUR GROUND!! We know you can do it!! We are behind you all the way!! Dorothy
Geoff Tolley September 26, 2012 at 04:29 PM
Except, Hoffa, consider: (i) The rule regarding what base wages are (http://werc.wi.gov/DOAroot/proposed_emergency_rules_for_calculation_of_maximum_base_wage_increase_for_general_municipal_employees.pdf) (ii) That this is an implementation of Option 1 in this memo by Nate Ristow, Walker's assistant legal counsel (http://www.scribd.com/doc/95341043/Base-Wage-Internal-Briefing-Memo) (iii) That memo states "Option 1 effectively prevents all employees from receiving a wage equal to the increase in CPI over what they earned the previous year" Ristow isn't exactly leaving the room for wage bargaining that you seem to believe is there.
Geoff Tolley September 26, 2012 at 04:33 PM
Except FDR actually endorsed them. http://www.presidency.ucsb.edu/ws/index.php?pid=15445 He didn't believe that public employees should *strike*, but he was down with the NFFE. But don't let facts get in the way of a good rant.
James R Hoffa September 26, 2012 at 06:18 PM
@Geoff Tolley - Irregardless of what FDR's position on public sector unions were, it is indisputable that there is an inherent conflict of interest with public sector unionization in that the public sector union employees are also taxpayers, thus they are in effect bargaining against their own self interests. Their compensation also derives from public funds which are collected from citizens by force via taxation, which the unions have no direct control over. Not to mention that the public sector union employees get to vote for the public officials that their unions are negotiating against, thus they effectively end up with representation on both sides of the bargaining table. However, non-union taxpayers are not permitted to vote for the union officials. Public sector unionization is fundamentally inequitable.
Geoff Tolley September 26, 2012 at 06:34 PM
Nothing in your argument there actually makes a distinction between unionized and non-unionized public employees (the non-unionized are also taxpayer-voters), so your conclusion is arbitrary and unsupported.
James R Hoffa September 26, 2012 at 06:36 PM
@ Mr. Tolley - Except that you're still conveniently forgetting that neither the Act or the administrative rules prevents a union employee from attempting to bargain for themselves for a wage increase above and beyond the CPI - a concept known a individually earned merit based pay. Also, the administrative rule that you've linked to is merely the proposed rule. And the scope of this discussion does not entail whether or not the enacted administrative rules comply with the statutory scheme, but rather whether or not the statutory scheme as a whole is constitutional. Let's avoid shifting the subject and only deal with discussing the issues as they arise in reality, shall we?
Bren September 26, 2012 at 06:47 PM
Actually Greg, Walker built on Doyle's recession-based borrowing by restructuring existing debt and adding $20 million in new debt in the form of interest charges. If you believe this is what budget balancing looks like I can recommend a solid financial advisor...
Bren September 26, 2012 at 06:49 PM
Mr. Hoffa, I know how attached you become to your catch phrase-of-the-day but this one is offensive.
Bren September 26, 2012 at 06:49 PM
And owns a restaurant! ; )
Geoff Tolley September 26, 2012 at 07:05 PM
There's nothing "merely proposed" about Rule 90. It's an emergency rule, approved by the Governor. His own legal counsel said that this rule - made under the authority of Act 10's §111.70(4)(mb) - "effectively prevents all employees from receiving a wage equal to the increase in CPI over what they earned the previous year". When Walker's own legal counsel claims that an in-force-at-the-time part of Act 10 will restrict unionized employees from receiving even a CPI increase, you'd better believe that I'll take his opinion over yours.
Bren September 26, 2012 at 07:07 PM
You set the bar low if dangling on strings is doing a "great job."
James R Hoffa September 26, 2012 at 07:46 PM
@Mr. Tolley - You're right and wrong. As Hoffa previously pointed out, you linked to the proposed rule, so in this regard, you were wrong and Hoffa was correct - check your link again. However, you are right in that rule 90 exists. The correct link to the officially adopted form of Rule 90: http://werc.wi.gov/DOAroot/base_wage_rules_redraft_re_local_3-26-12.pdf You'll notice some differences between the proposed rule and the final rule. And again, you're attempting to shift the subject away from constitutional law and into administrative law. The scope of this article/discussion is limited to the constitutionality of the statutory scheme - not whether or not administrative rules promulgated under the statutory scheme actually comply with the statutory scheme. While Hoffa would be more than willing to have that discussion with you, it's best left for another time.
James R Hoffa September 26, 2012 at 07:52 PM
@Mr. Tolley - Very interesting position. From Hoffa's perspective, the unionized employee votes twice - once for the publicly elected official and another time for union officials that supposedly represent the employee's interests at the bargaining table. The non-unionized employee only votes once - for the publicly elected official. Is that not a distinguishable characteristic?
James R Hoffa September 26, 2012 at 07:56 PM
@Bren - That's very nice of you to remember! But please keep in mind that Hoffa is only a co-owner of the family restaurant, together with his father. As such, Hoffa's direct involvement in the day-to-day operations of the restaurant is limited, but still substantial. In fact, Hoffa is known to sometimes fill in for a non-appearing scheduled employee.
James R Hoffa September 26, 2012 at 07:58 PM
@Bren - Sorry to offend, as none was intended - it's merely a continuation of an inside 'running joke' with Jerry. However, if it does offend, Hoffa will gladly retract such comment.
Geoff Tolley September 26, 2012 at 08:12 PM
The foray into administrative law is but an illustration of Ristow's memo advice that no matter which rule they chose (including option 3, "status quo"), Act 10 restricted the wage bargaining rights of those who were union-represented. (Thanks for correcting the rule link).
James R Hoffa September 26, 2012 at 08:14 PM
@Bren - Yep, paying off the reciprocity bill with Minnesota and fully restoring the funding that was illegally raided by Doyle from segregated programs is definitely building "on Doyle's recession-based borrowing," isn't it? Hoffa has already explained to you time and again about why the restructuring was necessary in the current biennium, but you refuse to accept the reality of the situation by refusing to name additional layoffs/budget cuts that you would have preferred seeing in order to avoid such restructuring. You also fail to note that Doyle was borrowing like mad despite having received and spent one of the largest federal stimulus packages in the state's history and implementing large tax hikes against his express campaign promise not to raise taxes! In comparison, Walker has successfully avoided making any new public debt offerings on the state's credit card while receiving no out-of-the-ordinary federal funds and while holding the line on state taxation. And the state is projecting a budget surplus for the first time in a long time! And Walker has previously committed any budget surplus realized to paying down the previously accrued structural debt, which will thereby save us much more than the restructuring will cost us in the overall big picture! Doyle = failure Walker = huge success
Geoff Tolley September 26, 2012 at 08:23 PM
No it isn't. They get representation at the bargaining table either via their union (if unionized) or personally (if not). If they choose to not have a union, their vote on who sits on the labor supply side of the table is by default for themselves. The distinction you attempt to make about vote-doubling is meaningless (unless you mean to highlight the difference in what can be negotiated that is the subject of the court case in question, but something tells me you don't).
James R Hoffa September 26, 2012 at 08:37 PM
@Mr. Tolley - You mean that Act 10 restricted that which the union could negotiate for on behalf of their members - and such point was never in dispute, as that's exactly what Act 10 does. It still doesn't prevent union members from negotiating individually everything that their union is now prevented from negotiating, under Hoffa's interpretation of the Act, when read together with existing statutory schemes and common law contracting precedent. That's the issue in regards to constitutionality of the Act.
Geoff Tolley September 26, 2012 at 09:13 PM
I can name what could have been cut in order to balance the 2012-13 budget: nothing at all. See Table 1 on page 7 of Walker's budget proposal http://www.doa.state.wi.us/debf/pdf_files/bib1113.pdf which shows where his $3.6 billion figure comes from. Now note the starting point, the November 19th, 2010 DoA report's $1,489m shortfall. That figure can be found in Table 4 of the report at http://www.doa.state.wi.us/docview.asp?docid=8371&locid=166 What you'll also notice from this report is that it is a dumb subtraction of the sum of agency requests for FY12-13 from the projected revenue. The two-year increase of those all funds agency requests from base is $3,944,820,400, which rather exceeds Walker's claimed deficit. Now, some of that's from GPR and some from other revenue, and some of the latter sources of revenue are partly contingent upon some level of GPR funding, so you can't necessarily make all-GPR cuts to keep agency funding constant. But there's a ballast for that of almost $350m. So I don't see any source cited by Walker that necessitated any agency take any budget cuts at all - and this is *after* allowing for all the things Walker's budget proposal highlighted like the raided funds repayment, the failure of the US House to extend the stimulus' extra medicaid dollars etc.
Geoff Tolley September 26, 2012 at 09:17 PM
So you think Ristow got it wrong, that it is not the case that Act 10 "effectively prevents all employees from receiving a raise equal to the increase in CPI" ?
James R Hoffa September 26, 2012 at 09:42 PM
@Geoff Tolley - Hoffa believes that Ritsow's letter was limited in scope to addressing changes in collective bargaining, wherein it's stated in the introductory "WERC has prepared three scope statements for rule-making related to the determination of base wages under Act 10 bargaining changes." Accordingly, when Ritsow references "all employees" in the passage your quoted, he is clearly referring to activities solely within the scope of collective bargaining and the new limitations placed upon them by the Act, and not in regards to activity occurring outside the confines of collective bargaining. Come on - you must have realized the limited scope of the letter, as you're a very intelligent and logical guy!
James R Hoffa September 26, 2012 at 09:50 PM
@Mr. Tolley - You're presuming that the union elected representative always reflects the vote/choice of the individual union member. In reality, it doesn't work that way as it's a majority consensus as opposed to a unanimous consent system. Thus, where the non-union employee always has their own interests represented at the bargaining table, the union employee might not - especially if the union rep that the individual member voted for lost the union election.
James R Hoffa September 26, 2012 at 10:05 PM
@Mr. Tolley - If what you are saying is correct, and given the cuts that were in fact made, then shouldn't the projected budget surplus be much larger than it actually is?
Geoff Tolley September 26, 2012 at 11:51 PM
No. Some of the most significant biennial increases, over all funds base allocations: - the DoA got $314m (17%) more funding - the Department of Health services got $1,835m (11%) more (this is on an all funds basis, so this is the increase in excess of the replaced stimulus dollars). - Program Supplements was $77m higher (225%) - to be fair this value tends to swing wildly from year to year. - the Department of Regulation and Licensing got renamed to the Department of Safety and Professional Services and a $105m (381%) increase - the Department of Transportation received a $67m (1%) increase - the WEDC was created and given $161m to play with. To be fair, some departments were eliminated and their responsibilities reassigned. But Walker and his legislative enablers picked winners and losers: the only reason Wisconsin education got the budget shaft as it did was because Walker wanted it to.


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