State Attorney General J.B. Van Hollen on Tuesday asked a Dane County judge to hold off enforcement of his ruling that overturned much of a controversial collective bargaining law until the state has appealed the decision.
Van Hollen argues that a decision by Circuit Judge Juan Colas is likely to be overturned on appeal and that a stay is needed to avoid confusion and harm that might result if local governments and school districts are not allowed to proceed with the law still intact while an appeal is pending.
On Friday, Colas declared major portions of the law to be unconstitutional violations of the rights to free speech, freedom of association and equal protection.
Also as expected, Van Hollen gave the court formal notice that he intends to appeal Colas' ruling.
"Act 10 addressed real and significant financial problems faced by local governments," Van Hollen wrote in a statement. "It makes no sense to force a return to a broken system before the appellate process is completed."
Van Hollen asked that Colas take up and decide the motion for a stay "at the earliest possible opportunity." No court dates were set Tuesday.
Lawyers for Madison Teachers Inc., a plaintiff in the lawsuit that led to Colas' decision, have said they are confident that the ruling will be upheld on appeal.
In another development Tuesday, MTI lawyer Lester Pines wrote to Van Hollen demanding to know whether Van Hollen adopts comments that Gov. Scott Walker made on Friday and in a fundraising letter Walker sent out over the weekend labeling Colas as a "liberal activist judge."
By his silence, Pines wrote, Van Hollen has adopted Walker's statement and may be in violation of a state Supreme Court rule that prohibits lawyers from making knowingly false statements about the integrity of a judge. He noted that Colas, before becoming a judge, had worked for Van Hollen as an assistant attorney general.
Van Hollen spokeswoman Dana Brueck said Pines' letter "is of no legal significance and does not merit a response."
In its brief seeking a stay, the state contends the collective bargaining law gives flexibility to local governments to provide services without increasing state aid or raising taxes and enhances the First Amendment interests of workers who don't want to join unions.
"At some point the litigation over Act 10 will be over and there will be a definitive answer as to whether it meets the requirements of state and federal constitutions," wrote the state's lawyers, who include Assistant Attorney General Steven Kilpatrick and Michael Best & Friedrich lawyers Joseph Olson and Michael Screnock. "In the meantime, it does not serve the public interest for parts of the law to be invalidated only to have them restored on appeal."
The state also fears that municipal and school district employee unions would immediately demand new contract negotiations that could lead to fiscal burdens on local governments, some of which may be pressured to compensate workers for wages and benefits lost while the collective bargaining law was in effect.
Colas' decision, they argued, "applies novel theories of law that effectively converts a limited, statutory collective bargaining process into labor code that cannot be altered without infringing on fundamental constitutional rights. This theory, however, has no support in the federal or state constitutions or decisions interpreting those constitutions."