                                                                    2014 WI 99

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:                2012AP2067
COMPLETE TITLE:          Madison Teachers, Inc., Peggy Coyne, Public
                         Employees
                         Local 61, AFL-CIO and John Weigman,
                                    Plaintiffs-Respondents,
                              v.
                         Scott Walker, James R. Scott, Judith Neumann and
                         Rodney G.
                         Pasch,
                                    Defendants-Appellants.



                            ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:           July 31, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           November 11, 2013

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Dane
   JUDGE:                Juan B. Colas

JUSTICES:
   CONCURRED:            CROOKS, J., concurs. (Opinion filed.)
   DISSENTED:            BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
                         filed.)
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendants-appellants, there were briefs by J.B.
Van    Hollen,         attorney   general,   and   Kevin   St.   John,   deputy
attorney general, Steven P. Means, executive assistant attorney
general, and Steven C. Kilpatrick, assistant attorney general.
Oral argument by J.B. Van Hollen and Kevin St. John.


       For the plaintiff-respondents, there was a brief by Lester
A. Pines, Lee Cullen, Tamara B. Packard, Susan M. Crawford, and
Cullen Weston Pines & Bach LLP, Madison; and M. Nicol Padway,
Aaron A. DeKosky, and Padway & Padway, Ltd., Milwaukee; and oral
argument by Lester A. Pines, Tamara B. Packard, and M. Nicol
Padway.


      An amicus curiae brief was filed by Michael P. May, city
attorney,    and    John        W.   Strange,      assistant        city     attorney,      on
behalf of the City of Madison.


      An amicus curiae brief was filed by Bruce F. Ehlke, Katy
Lounsbury, and Ehlke, Bero-Lehmann & Lounsbury, S.C., Madison,
on behalf of Laborers Local 236 and AFSCME Local 60.


      An amicus curiae brief was filed by Grant F. Langley, city
attorney, Rudolph M. Konrad, deputy city attorney, Stuart S.
Mukamal,    assistant       city      attorney,          and    Donald      L.     Schriefer,
assistant city attorney, on behalf of the City of Milwaukee.


      An amicus curiae brief was filed by Milton L. Chappell,
Nathan J. McGrath, and               National Right to Work Legal Defense
Foundation,     Inc.,      Springfield,           VA;     and   Richard       M.   Esenberg,
Thomas C. Kamenick, Brian McGrath, and Wisconsin Institute for
Law   &    Liberty,        Milwaukee;       and         Bruce    N.    Cameron,       Regent
University    School       of    Law,   Virginia          Beach,      VA;    on    behalf   of
Elijah Grajkowski, Kristi Lacroix, and Nathan Berish.


      An amicus curiae brief was filed by Timothy E. Hawks and
Hawks Quindel, S.C., Milwaukee; and Marianne Goldstein Robbins
and The Previant Law Firm S.C., Milwaukee; and Stephen Pieroni,
Madison; and       Peggy A. Lautenschlager                 and     Bauer & Bach, LLC,
Madison; and Aaron N. Halstead and Hawks Quindel, S.C., Madison;
and   Barbara      Zack    Quindel      and       Hawks    Quindel,         Milwaukee;      and
Jeffrey Sweetland and Hawks Quindel, S.C., Milwaukee; and Mark
A. Sweet and Sweet and Associates, LLC, Milwaukee; on behalf of
the   Wisconsin     Education         Association         Council,       AFSCME     District
Councils     24,     40,     and      48,     AFT-Wisconsin,           SEIU        Healthcare
                                              2
Wisconsin,     Wisconsin        Federation   of   Nurses   and     Health
Professionals, and State of Wisconsin AFL-CIO.




    An amicus curiae brief was filed by Andrew T. Phillips,
Daniel J. Borowski, Jacob J. Curtis, and Phillips Borowski S.C.,
Mequon,   on   behalf      of    Wisconsin   County   Mutual     Insurance
Corporation and Community Insurance Corporation.




                                      3
                                                                    2014 WI 99
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2012AP2067
(L.C. No.    2011CV3774)

STATE OF WISCONSIN                        :            IN SUPREME COURT

Madison Teachers, Inc., Peggy Coyne, Public
Employees Local 61, AFL-CIO and John Weigman,

              Plaintiffs-Respondents,
                                                                 FILED
      v.
                                                            JUL 31, 2014
Scott Walker, James R. Scott, Judith Neumann
and Rodney G. Pasch,                                           Diane M. Fremgen
                                                            Clerk of Supreme Court
              Defendants-Appellants.




      APPEAL from a judgment and order of the Circuit Court for

Dane County, Juan B. Colas, Judge.      Reversed.


      ¶1      MICHAEL J. GABLEMAN, J.   In March 2011, the Wisconsin

Legislature passed Act 10,1 a budget repair bill proposed by

Governor Scott Walker.      Act 10 significantly altered Wisconsin's


      1
       Provisions of Act 10 were reenacted without amendment in
2011 Wisconsin Act 32 ("Act 32"), the 2011-13 state budget,
which reestablished collective bargaining rights for some
municipal transit employees.   For ease of discussion, we refer
to the Municipal Employment Relations Act, as amended by Acts 10
and 32, as "Act 10."
                                                                         No.     2012AP2067



public employee labor laws.             Act 10 prohibits general employees

from collectively bargaining on issues other than base wages,

prohibits municipal employers from deducting labor organization

dues       from    paychecks     of    general         employees,     imposes        annual

recertification           requirements,          and      prohibits        fair       share

agreements requiring non-represented general employees to make

contributions to labor organizations.

       ¶2     In    August     2011,   Madison         Teachers,    Inc.    and      Public

Employees         Local   61    sued    Governor          Walker    and        the    three

commissioners of the Wisconsin Employment Relations Commission

challenging        several     provisions        of    Act   10.      The      plaintiffs

alleged, among other things, that four aspects of Act 10——the

collective bargaining limitations, the prohibition on payroll

deductions of labor organization dues, the prohibition of fair

share agreements, and the annual recertification requirements——

violate the constitutional associational and equal protection

rights of the employees they represent.                       The plaintiffs also

challenged Wis. Stat. § 62.623 (2011-12),2 a separate provision
created by Act 10, which prohibits the City of Milwaukee from

paying      the    employee    share    of       contributions      to    the     City   of




       2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise noted.

                                             2
                                                                    No.    2012AP2067



Milwaukee Employes'3 Retirement System, alleging it violates the

home       rule   amendment   to    the        Wisconsin    Constitution.          The

plaintiffs argued, in the alternative, that if Wis. Stat.                            §

62.623 does not violate the home rule amendment, it nevertheless

violates      the   constitutionally       protected       right   of    parties   to

contract with each other.

       ¶3     The Dane County Circuit Court, Judge Juan B. Colas,

presiding, invalidated several provisions of Act 10, including

the provisions relating to collective bargaining limitations,

union      recertifications,       and    the    prohibitions      on    fair   share

agreements and payroll deductions of labor organization dues.

The court of appeals certified the case to this court, pursuant

to Wis. Stat. § 809.61.        We now uphold Act 10 in its entirety.

                       I.   BACKGROUND AND PROCEDURAL HISTORY

       ¶4     Plaintiff-Respondents            are     Madison     Teachers,     Inc.

("MTI"),      Public    Employees    Local       61   ("Local    61"),    and   their

       3
       "Employes" is an alternate spelling for "Employees."
Webster's Third New International Dictionary 743 (3d ed. 2002).
"Employe" was once the common spelling in English.      Bryan A.
Garner, A Dictionary of Modern Legal Usage, 312 (2d ed. 2001)
(citing Hull v. Philadelphia & R.R., 252 U.S. 475, 479 (1920)
("We need hardly repeat the statement . . . that in the
Employers' Liability Act Congress used the words 'employé' and
'employed' in their natural sense, and intended to describe the
conventional relation of employer and employé.")). In fact, H.W.
Fowler, an ardent advocate of the "–ee" suffix, notes in the
first edition of A Dictionary of Modern English Language (1926)
that in the late 19th century the Oxford English Dictionary
"labelled employee 'rare exc. U.S.'"").

     We will use the more contemporary spelling, "employee,"
unless the alternative spelling, "employe" appears in quoted
language or in a party's name.

                                           3
                                                              No.     2012AP2067



respective representatives, Peggy Coyne and John Weigman.                    MTI

is   a    labor   organization    representing     over     4,000     municipal

employees of the Madison Metropolitan School District.                Local 61

is a labor organization representing approximately 300 City of

Milwaukee employees.4

     ¶5     The Defendant-Appellants are Governor Walker and the

three     commissioners    of    the   Wisconsin    Employment        Relations

Commission ("WERC"), James R. Scott, Judith Neumann, and Rodney

G. Pasch (collectively, "the defendants").              Governor Walker and

the commissioners of WERC are sued in their official capacities.

Governor    Walker   has   responsibility       under     Wisconsin    law    to

implement and enforce state legislation through the agencies of

the State's executive branch.              The commissioners of WERC are

responsible for administering Wisconsin's labor laws.

     ¶6     Wisconsin has two principal labor laws, the Municipal

Employment Relations Act ("MERA"), Wis. Stat. § 111.70 et seq.,

and the State Employee Labor Relations Act ("SELRA"), Wis. Stat.


     4
       Act 10 creates two primary categories of public employees:
"general employees" and "public safety employees."       MTI and
Local 61 represent "general employees," as defined under Act 10.
Under Act 10, "general employees" is a catch-all term for public
employees who are not "public safety employees." See, e.g., Wis.
Stat. § 111.70(fm).    Employees classified as "public safety
employees" are not affected by Act 10's modifications to the
Municipal Employment Relations Act and the State Employee Labor
Relations Act.    The United States Court of Appeals for the
Seventh Circuit recently held, under a rational basis standard
of review, that the public employee classifications created by
Act 10 did not violate equal protection.    See Wis. Educ. Ass'n
Council v. Walker, 705 F.3d 640, 656 (7th Cir. 2013).         The
public employee classifications are not at issue in this appeal.

                                       4
                                                                                   No.        2012AP2067



§ 111.80       et      seq.,          which        govern     employment       relations             and

collective           bargaining              for     public        employees          and        labor

organizations.

       ¶7      In     2011,           the     Wisconsin       Legislature          enacted         2011

Wisconsin Act 10, a budget repair bill proposed by Governor

Walker.       Act 10, among other things, modified MERA to prohibit

general       employees          from       collective      bargaining        on   issues        other

than       "base    wages,"          prohibited       fair    share     agreements,            imposed

annual       recertification             requirements,           and   prohibited         municipal

employers          from     deducting          labor       organization        dues       from       the

paychecks of general employees.5

       ¶8      MTI        and        Local    61     (together         with    the       individual

plaintiffs, "the plaintiffs") filed the instant action in Dane

County       Circuit       Court       in     August      2011    seeking     declaratory            and

injunctive         relief,           alleging      that     certain     portions         of    Act    10

violated the Wisconsin Constitution.

       ¶9      In     November           2011,       the     plaintiffs        sought          summary

judgment on the following claims: (1) that Act 10 violates the
plaintiffs' right to free association guaranteed by Article I,

Sections 3         and     4     of     the    Wisconsin         Constitution        through         the

combined       effect           of    (a)     prohibiting         general      employees           from


       5
       The plaintiffs argue that specific provisions of MERA, as
amended by Act 10, are unconstitutional.     SELRA, which is the
counterpart legislation affecting state employees, is not being
challenged.   However, as the court of appeals observed in its
certification to this court, any decision on the provisions
affecting municipal employees under MERA would appear to be
dispositive with respect to state employees under SELRA as well.

                                                     5
                                                                  No.     2012AP2067



collective bargaining on issues other than "base wages," and

requiring any base wage increase exceeding                 a cost of living

adjustment to be approved by a municipal voter referendum, (b)

prohibiting     municipal      employers          from     deducting           labor

organization dues from the paychecks of general employees, (c)

prohibiting fair share agreements,6 and (d) requiring mandatory

recertification      elections;     (2)    that     Act    10     violates      the

plaintiffs' right to equal protection of the laws guaranteed by

Article   I,    Section 1     of     the    Wisconsin        Constitution         by

impermissibly     creating        classifications         that         disadvantage

represented general employees based on the exercise of their

rights to associate; (3) that certain provisions of Act 10 were

enacted in a manner that violated Article VI, Section 11 of the

Wisconsin Constitution, which governs special sessions of the

legislature, by not being related to the stated purpose of the

special   session;    (4)    that   Act    10     violates       the    home    rule

amendment to the Wisconsin Constitution by mandating that City

of Milwaukee employees make certain contributions to the City of
Milwaukee Employes' Retirement System ("Milwaukee ERS") and, in

doing so, interfering with the City of Milwaukee's home-rule


    6
       Fair share agreements, also commonly referred to as
"agency-shop agreements," are negotiated arrangements between
governmental   employers   and   certified   labor   organization
representatives that require all public employees, including
employees who do not wish to join or support a labor
organization, to pay the proportional share of the cost of
collective bargaining and contract administration. See, e.g.,
Ronald D. Rotunda & John E. Nowak, 5 Treatise on Constitutional
Law, Substance and Procedure, § 20.41(p), at 439 (5th ed.).

                                      6
                                                                          No.     2012AP2067



authority; (5) that Act 10 violates the Contract Clauses of the

United States and Wisconsin Constitutions by unconstitutionally

impairing Local 61's vested contractual right to the City of

Milwaukee funding the employee share of contributions to the

Milwaukee    ERS;    and    (6)    that    Act       10   violates      due     process    by

shifting the responsibility for pension contributions from the

City of Milwaukee to members of Local 61, which is a deprivation

of property without due process of law.

      ¶10   In January 2012, the defendants moved for judgment on

the     pleadings,    arguing      the     circuit         court   should        deny     the

plaintiffs' motion for summary judgment and dismiss the suit

with prejudice.       On September 14, 2012, the circuit court issued

a decision and order that denied the defendants' motion for

judgment on the pleadings and granted partial summary judgment

to the plaintiffs.         The circuit court held that Act 10 violated:

(1)   the   plaintiffs'      rights       of       association,    free       speech,     and

equal    protection       under   both     the       United   States     and     Wisconsin

Constitutions;       (2)    the   home     rule       amendment    to    the     Wisconsin
Constitution;       and    (3)    the    Contract         Clause   of    the     Wisconsin

Constitution.        Further, the circuit court held that Act 10 did

not violate the special session limiting clause of the Wisconsin

Constitution or the constitutional prohibition against taking a

property interest without due process of law.                        Accordingly, the




                                               7
                                                                              No.     2012AP2067



circuit court concluded that those sections of Act 10 found to

be unconstitutional are void and without effect.7

       ¶11        On September 18, 2012, the defendants filed a notice

of appeal.              On April 25, 2013, the court of appeals certified

the case to this court.

       ¶12        On     June      14,        2013,        this     court     accepted       the

certification.

                                    II.          STANDARD OF REVIEW

       ¶13        The     issue     before         this     court    is     whether    certain

provisions of Act 10 violate the United States and Wisconsin

Constitutions.            The constitutionality of a statute is a question

of law that we review de novo.                          State v. Randall, 192 Wis. 2d

800,       824,    532     N.W.2d       94    (1995).        All    legislative       acts   are

presumed constitutional and we must indulge every presumption to

sustain the law.                  Id.        Any doubt that exists regarding the

constitutionality of the statute must be resolved in favor of

its constitutionality.                  State ex rel. Hammermill Paper Co. v. La

Plante, 58 Wis. 2d 32, 47, 205 N.W.2d 784 (1973).                              Consequently,
it     is    insufficient          for       a     party    to     demonstrate      "that    the

statute's constitutionality is doubtful or that the statute is

probably unconstitutional."                        Wis. Med. Soc'y, Inc. v. Morgan,

2010 WI 94, ¶37, 328 Wis. 2d 469, 787 N.W.2d 22 (citing State v.


       7
       On October             10, 2013, the circuit court amended the
September 14, 2012            Order to add the third sentence of Wis. Stat.
§ 111.70(2)   to             the    statutes  the   court  concluded   were
unconstitutional.              That sentence states: "A general municipal
employee has the               right to refrain from paying dues while
remaining a member           of a collective bargaining unit."

                                                    8
                                                                          No.    2012AP2067



Smith,     2010    WI        16,    ¶8,     323       Wis. 2d 377,     780     N.W.2d 90).

Instead,    the    presumption            can    be    overcome   only    if    the   party

establishes        the        statute's           unconstitutionality           beyond    a
                         8
reasonable doubt.             Id.

     ¶14    This        case       also     presents       questions      of     statutory

interpretation,         which       this    court      reviews    de   novo.      Covenant

Healthcare Sys., Inc. v. City of Wauwatosa, 2011 WI 80, ¶21, 336

Wis. 2d 522, 800 N.W.2d 906.

                                           III. DISCUSSION

     ¶15    This appeal presents four issues: (1) whether Act 10

impermissibly infringes on the associational rights of general

employees; (2) whether Act 10 impermissibly infringes on the

equal protection rights of represented general employees when

compared to non-represented general employees; (3) whether Act

10   violates       the        home       rule        amendment   to     the     Wisconsin

Constitution by prohibiting the City of Milwaukee from paying

the employee share of pension contributions to the Milwaukee

ERS; and (4) whether Act 10 violates the Contract Clause of the



     8
       As this court explained in Ferdon ex rel. Petrucelli v.
Wisconsin Patients Comp. Fund, 2005 WI 125, ¶68 n.71, 284 Wis.
2d 573, 701 N.W.2d 440:

     The constitutionality of a statute is an issue of law, not
     fact. The "beyond the reasonable doubt burden of proof"
     language is, however, reminiscent of an evidentiary burden
     of proof in criminal cases. The beyond a reasonable doubt
     burden of proof in a constitutional challenge case means
     that a court gives great deference to the legislature, and
     a court's degree of certainty about the unconstitutionality
     results from the persuasive force of legal argument.

                                                 9
                                                                      No.     2012AP2067



Wisconsin        Constitution         by    significantly        impairing            the

contractual rights of City of Milwaukee employees.

    ¶16     We    address      each   issue     in   turn.     However,        because

terminology is critical to interpreting the parties' arguments,

it is important that we review certain relevant terms before

beginning our analysis.

                                      A. Terminology

    ¶17     The heart of this appeal centers on unions, collective

bargaining,       and    the      right    to    associate     with         others     to

collectively      engage    in    protected     First    Amendment         activities.

These   issues     are     always     emotionally     charged,    especially           in

turbulent   times,       but   perhaps     nowhere      are   these    topics        more

controversial or sensitive than in the State of Wisconsin.                            The

importance of these questions demands clarity on what precisely

is before the court, which in turn requires specificity on our

part in the terminology upon which we rely.

    ¶18     With respect to the term "collective bargaining," we

agree with the court of appeals that the following discussion
provided    by    an     amicus     effectively      highlights       an     important

definitional distinction:

    Historically,   in   the   United   States  the   term
    "collective bargaining" has been used to describe two
    legally different activities . . . . The first way in
    which the term has been used has been to describe an
    activity that is an element of the right of individual
    citizens to associate together for the purpose of
    advocating regarding matters of mutual interest or
    concern,   including  matters   concerning wages   and
    employment conditions. When used in this way the term
    "collective bargaining" is descriptive of a collective
    effort and refers to an activity where the party that

                                           10
                                                                        No.   2012AP2067


     is the object of the advocacy, the employer, has no
     legal obligation to respond affirmatively to the
     advocacy, but may do so voluntarily.

     . . . . [This type of "collective bargaining"] is a
     fundamental right that constitutionally is protected.

     The   second   way   in which    the   term   "collective
     bargaining" has been used is to refer to a statutorily
     mandated   relationship   between   an   association   of
     employees and their employer, by the terms of which an
     employer and its employees are obligated to negotiate,
     in "good faith," for the purpose of reaching an
     agreement    regarding  the    employees'    wages    and
     conditions of employment.

     Such statutorily recognized "collective bargaining" is
     subject to legislative modification, for the purpose,
     at least heretofore, of protecting the employees'
     fundamental right to bargain with their employer.
Brief   for    Laborer's       Local   236    and   AFSCME      Local    60   as   Amici

Curiae at 3, 6–7 (some citations omitted).                         As the court of

appeals did in its certification to this court, we use the term

"collective bargaining" in the latter sense; that is, to refer

to   the      statutorily        established        relationship         between     an

association of public employees and their employer.

     ¶19      This     definition        of    "collective         bargaining"       is

consistent      with     the     language      of    Act     10,    which      defines

"collective bargaining" to mean "the performance of the mutual

obligation of a municipal employer . . . and the representative

of its municipal employees in a collective bargaining unit, to

meet and confer at reasonable times, in good faith, with the

intention     of     reaching    an    agreement,    or    to    resolve      questions

arising under such an agreement," with respect to wages for
general employees.         Wis. Stat. § 111.70(1)(a).                   A "collective


                                          11
                                                                               No.    2012AP2067



bargaining unit" is a "unit consisting of municipal employees"

that    has       been    recognized      by       WERC,   pursuant       to    statute,       as

qualified         for    the    purpose       of    collective     bargaining.            Stat.

§ 111.70(1)(b).

       ¶20     Further, under Act 10, for the purpose of collective

bargaining, a "representative" may be chosen "by a majority of

the municipal employees voting in a collective bargaining unit

[and] shall be the exclusive representative of all employees in

the     unit       . . . . "            Wis.       Stat.    § 111.70(4)(d)1.                 This

"representative" could potentially be a "labor organization,"

which    is       defined       as     "any    employee         organization         in   which

employees participate and which exists for the purpose, in whole

or in part, of engaging in collective bargaining with municipal

employers . . . ."              Wis. Stat. § 111.70(1)(h).

       ¶21     Unlike the term "labor organization," "union" is not

defined under Act 10, though as the court of appeals noted, the

parties use the term in two distinct ways.                                First, the term

"union" may refer to what the parties in this case agree is a
constitutionally protected association that individuals have the

right    to       form    and    employers          have   the    right    to        disregard.

However, the term "union" may also refer to the "representative"

of a "collective bargaining unit" in the statutorily established

relationship           between    an    association        of    public     employees        and

their employer.            For this reason, we follow the practice of the

court of appeals and generally avoid use of the term "union."

Instead, when referring to the "exclusive certified bargaining
agent"       of    a     collective      bargaining        unit,     as    that       term     is
                                                   12
                                                                              No.       2012AP2067



understood within the statutory framework established by Act 10,

we use the term "certified representative."

      ¶22    Finally,        we    refer       to    a   general     employee           that   has

chosen      to    participate          in     collective       bargaining       within         the

statutory        framework    established           by   Act    10   as   a     "represented

general employee," and in contrast, the term "non-represented

general     employee"        to    refer       to    a   general     employee           who    has

declined to participate.

                                  B.        Associational Claims

      ¶23    The plaintiffs' central argument on appeal is that the

following provisions of Act 10 violate the associational rights

of general employees and their certified representatives that

are   guaranteed       under       Article          I,   Sections 3       and       4    of    the

Wisconsin Constitution:9

      9
       The plaintiffs submit that Article I, Sections 3 and 4 of
the Wisconsin Constitution may be interpreted to provide greater
protection than the First Amendment to the United States
Constitution. We agree with the court of appeals, however, that
the plaintiffs fail to present a developed argument to support
their suggestion that Article I, Sections 3 and 4 of the
Wisconsin Constitution should confer more expansive protection
than its federal counterpart under the particular facts in this
case.     Accordingly, in our analysis of the plaintiffs'
associational rights claims, we treat the rights protected under
the Wisconsin and United States Constitutions to be coextensive.
See Lawson v. Hous. Auth. of Milwaukee, 270 Wis. 269, 274, 70
N.W.2d 605, 608 (1955). (holding that Article I, Sections 3 and
4 of the Wisconsin Constitution "guarantee the same freedom of
speech and right of assembly and petition as do the First and
Fourteenth [A]mendments of the United States [C]onstitution.");
see also Cnty. of Kenosha v. C & S Mgmt., Inc., 223 Wis. 2d 373,
388, 588 N.W.2d 236 (1999) ("Wisconsin courts consistently have
held that Article I, § 3 of the Wisconsin Constitution
guarantees the same freedom of speech rights as the First
Amendment of the United States Constitution").

                                               13
                                                              No.   2012AP2067


      1. The provision prohibiting collective bargaining
      between   municipal   employers   and   the  certified
      representatives   for   municipal    general  employee
      bargaining units on all subjects except base wages.
      Wis. Stat. § 111.70(4)(mb)1.

      2. The provisions limiting negotiated base wage
      increases to the increase in the Consumer Price Index,
      unless a higher increase is approved by a municipal
      voter    referendum.10      Wis.   Stat.   §§ 66.0506,
      111.70(4)(mb)2., and 118.245.

      3. The provisions prohibiting fair share agreements
      that previously required all represented general
      employees to pay a proportionate share of the costs of
      collective bargaining and contract administration.
      Wis. Stat. § 111.70(1)(f) and the third sentence of
      Wis. Stat. § 111.70(2).

      4. The provision prohibiting municipal employers from
      deducting labor organization dues from the paychecks
      of general employees. Wis. Stat. § 111.70(3g).

      5. The provision requiring annual recertification
      elections of the representatives of all bargaining
      units, requiring 51% of the votes of the bargaining
      unit members (regardless of the number of members who
      vote), and requiring the commission to assess costs of
      such elections. Wis. Stat. § 111.70(4)(d)3.
      ¶24    Whether the plaintiffs' First Amendment challenge to

these provisions has any merit is the lynchpin of this appeal.

The   core   of   our   review   is   determining   whether    there    is   a

cognizable     First    Amendment     interest,   which   establishes     the

attendant level of scrutiny applied to the legislative judgment

behind the requirement.          If Act 10 does not infringe on the


      10
       Act 10 defines "consumer price index change" as "the
average annual percentage change in the consumer price index for
all urban consumers, U.S. city average, as determined by the
federal department of labor, for the 12 months immediately
preceding the current date." Wis. Stat. § 111.70(1)(cm).

                                       14
                                                                                No.    2012AP2067



plaintiffs' First Amendment rights, it will be upheld if any

rational basis can be found for the contested provisions.                                       See

Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 359 (2009).

                           i. Freedom of Association Doctrine

       ¶25     The       freedom        of      association          doctrine          has     two

analytically            distinct        categories:          "intrinsic"         freedom        of

association, which protects certain intimate human relationships

under the Substantive Due Process component of the Fourteenth

Amendment,        and     "instrumental"          freedom      of     association,           which

protects associations necessary to effectuate First Amendment

rights.        See      Roberts    v.     U.S.    Jaycees,      468    U.S.      609,        617-18

(1984).        The      second    category       of    association         is    the    type    of

freedom      of    association      right        the   plaintiffs       assert         has    been

infringed         upon     in     this       case.       Regarding          this       form     of

association, the United States Supreme Court has "recognized a

right     to      associate       for     the     purpose      of     engaging         in    those

activities protected by the First Amendment——speech, assembly,

petition for the redress of grievances, and the exercise of
religion.         The Constitution guarantees freedom of association of

this    kind       as    an     indispensable          means     of    preserving            other

individual        liberties."            Roberts,      468    U.S.    at    618;       see     also

Merrifield v. Bd. of Cnty. Comm'rs, 654 F.3d 1073, 1080-81 (10th

Cir. 2011); Weber v. City of Cedarburg, 129 Wis. 2d 57, 68, 384

N.W.2d 333 (1986) (noting that "[f]reedom of association is an

implied incident of the first amendment guarantees").

          ii. Overview of the Plaintiffs' Associational Arguments


                                                 15
                                                                         No.      2012AP2067



     ¶26        The   plaintiffs'       argument    that   Act     10    violates         the

constitutional right of general employees and their certified

representatives to freely associate is premised on a novel legal

theory.          Therefore,        in    order     to   properly        address         their

arguments, we find it helpful to first outline their claims.

     ¶27        The plaintiffs begin by stressing that no contention

is being made that public employees have a constitutional right

to collectively bargain.11               Instead, the plaintiffs argue that,

while     the    State    may   statutorily        restrict      the    obligation        to

collectively          bargain      in    good     faith,    the    State          may     not

constitutionally withhold benefits or penalize public employees

for exercising their associational rights to self-organization

or   to     select       a   certified          representative         for     collective

bargaining purposes.

     ¶28        In framing this argument, the plaintiffs rely heavily

on Lawson v. Housing Authority of Milwaukee, 270 Wis. 269, 70

N.W.2d 605 (1955).           In Lawson, this court held that a federal

housing     regulation       was    unconstitutional        because          it   required
tenants         to    relinquish         their     right    to     associate             with

organizations         designated        as   subversive    by    the    United      States

     11
       The plaintiffs' emphasis on this point is prudent. It is
well-established law that no constitutional right to collective
bargaining exists. See, e.g., Smith v. Ark. State Highway Emp.,
Local 1315, 441 U.S. 463, 465 (1979) (holding "the First
Amendment does not impose any affirmative obligation on the
government to listen, to respond or, in this context, to
recognize the association and bargain with it"). It is
undisputed the State could eliminate collective bargaining
entirely without violating the constitutional rights of the
plaintiffs.

                                             16
                                                                          No.    2012AP2067



Attorney General in order to remain eligible to continue living

in federally aided housing projects.                      Lawson, 270 Wis. at 288.

This    court      concluded      that        a     government     agency       could   not

condition the privilege of subsidized housing, which lies within

the    agency's       discretion         to       grant    or     withhold,       on    the

relinquishment        of    the     constitutionally             protected      right    to

associate.       Id. at 275.

       ¶29   Lawson is representative of a body of case law that

applies      the     doctrine     of        unconstitutional        conditions.         This

doctrine embodies the principle that freedom of speech would be

rendered     a     hollow   right      if     the    government     was   permitted      to

place, as a condition on the receipt of a governmental benefit,

any restrictions on speech it pleased.                      Justice Potter Stewart

forcefully expressed the importance of this principle in Perry

v. Sindermann:

       For at least a quarter-century, this Court has made
       clear that even though a person has no 'right' to a
       valuable governmental benefit and even though the
       government may deny him the benefit for any number of
       reasons, there are some reasons upon which the
       government may not rely. It may not deny a benefit to
       a   person    on    a   basis   that    infringes  his
       constitutionally protected interests——especially, his
       interest in freedom of speech. For if the government
       could deny a benefit to a person because of his
       constitutionally protected speech or associations, his
       exercise of those freedoms would in effect be
       penalized   and   inhibited.  This   would   allow the
       government to 'produce a result which (it) could not
       command directly.' Speiser v. Randall, 357 U.S. 513,
       526 . . . .   Such interference with constitutional
       rights is impermissible.




                                              17
                                                                           No.     2012AP2067



408 U.S. 593, 597 (1972); see also United States v. Scott, 450

F.3d     863,        866     (9th        Cir.     2006)     ("The       'unconstitutional

conditions'         doctrine . . . limits             the   government's         ability   to

exact waivers of rights as a condition of benefits, even when

those benefits are fully discretionary."); Rumsfeld v. Forum for

Academic and Institutional Rights, Inc., 547 U.S. 47, 59 (2006)

("[T]he government may not deny a benefit to a person on a basis

that infringes his constitutionally protected . . . freedom of

speech       even    if     he     has    no     entitlement      to     that    benefit.")

(internal citations omitted).                    The purpose of the doctrine is to

prevent        the        government        from       indirectly        restricting        a

constitutional right that it may not otherwise directly impair.

       ¶30    The        plaintiffs       raise       two   related,      but      allegedly

distinct, arguments that, under the unconstitutional conditions

doctrine, Act 10 violates their constitutional rights to freedom

of    association.               First,    the    plaintiffs      argue     that    Act    10

violates the constitutional right to freedom of association by

conditioning the receipt of a "benefit"——here, the potential for
a general employee or group of general employees to negotiate

all    issues        with    the     municipal        employer,        including    matters

affecting wages and hours——on the relinquishment of the general

employees' ability to choose to have a certified representative

act on their behalf.               Second, the plaintiffs claim that several

provisions          of     Act     10,    through       cumulative       effect,     impose

organizational and financial penalties on general employees who

choose the statutory "privilege" of participating in collective


                                                 18
                                                                       No.     2012AP2067



bargaining for the purpose of requiring their municipal employer

to bargain in good faith on base wages.

     ¶31    Regarding        the        second      argument,       the       plaintiffs

emphasize they are not asserting that each of the contested

provisions    of    Act    10,    standing       alone,    violates       associational

rights.     Instead, the plaintiffs argue it is the impact of the

contested provisions of Act 10, taken together, that creates a

constitutional violation.

           iii. Limitations on Permissible Collective Bargaining

                                        Subjects

     ¶32    Before the enactment of Act 10, general employees were

permitted under MERA to collectively bargain over a broad array

of subjects, including wages, working conditions, work hours,

and grievance procedures.               Act 10 limits collective bargaining

between municipal employers and the certified representatives of

general employees to the single topic of "total base wages and

excludes     any     other       compensation        . . . . "             Wis.    Stat.

§ 111.70(4)(mb)1.            Moreover,        Act    10     prohibits         collective
bargaining for base wage increases that exceed an increase in

the Consumer Price Index unless approved in a municipal voter

referendum.         Wis.     Stat.        §§ 111.70(4)(mb)2.,         66.0506,       and

118.245.

     ¶33    The plaintiffs argue this limitation penalizes general

employees     who    choose        to    be      represented     by       a   certified

representative because Act 10 imposes no limitations whatsoever

on   the    terms    that        non-represented          general     employees      may
negotiate    with    their       municipal      employers.      Consequently,        the
                                           19
                                                                             No.    2012AP2067



plaintiffs      contend,      Act        10   unconstitutionally              burdens         the

associational      rights     of     general        employees       because        they   must

surrender their association with a certified representative in

order to negotiate anything beyond base wages.

    ¶34    The plaintiffs' argument does not withstand scrutiny.

As discussed above, the plaintiffs cite to this court's holding

in Lawson, 270 Wis. 269, for the general proposition that the

government   may    not      condition        the    receipt       of    a    discretionary

benefit on the relinquishment of a constitutionally protected

right.     In    essence,          the    plaintiffs        rely    on       Lawson      as    an

illustration      of    our         court      applying       the        unconstitutional

conditions   doctrine.             Beyond     Lawson,       the    plaintiffs         cite     to

numerous cases that support the same doctrinal principle: it is

impermissible for the government to condition the receipt of a

tangible   benefit      on    the    relinquishment          of     a    constitutionally

protected right.          See, e.g., Agency for Int'l Dev. v. Alliance

for Open Soc'y Int'l Inc., 133 S. Ct. 2321, 2328 (2013).

    ¶35    We      do        not         dispute      the         existence         of        the
unconstitutional conditions doctrine or its robustness in our

jurisprudence.            The        problem         lies     in        the        doctrine's

inapplicability to this case, and consequently, the absence of

support it provides the plaintiffs' argument.

    ¶36    Comparing Lawson to the facts of this case swiftly

illustrates the problem.             In Lawson, this court held that it was

unconstitutional for the government to condition the receipt of

a benefit (living in a federally aided housing project) on the
relinquishment of a constitutionally protected right (the right
                                              20
                                                                        No.     2012AP2067



to associate with organizations that engage in constitutionally

protected    speech).           Here,    the     plaintiffs     argue    that       it    is

unconstitutional       for       the    government,       through       Act      10,      to

condition the receipt of a benefit (to participate in collective

bargaining    on      the       lone     topic     of    base     wages)        on       the

relinquishment of a constitutionally protected right (the right

to   associate     with     a    certified        representative        in     order     to

collectively bargain on any subject).

     ¶37    The    plaintiffs'         logical    fallacy     rests     in    the    false

analogy    between    the       respective      rights    being   relinquished           in

Lawson and in this case.           Without question, in Lawson, the right

being relinquished for a benefit——the right to associate with

organizations that engage in constitutionally protected speech——

is   fundamental      in     nature       and     protected     under         the    First

Amendment.    Here, however, the "right" the plaintiffs refer to——

the right to associate with a certified representative in order

to collectively bargain on any subject——is categorically not a

constitutional right.
     ¶38    General     employees        have     no    constitutional         right      to

negotiate with their municipal employer on the lone issue of

base wages, let alone on any other subject.                           As the United

States Supreme Court made clear:

     [While t]he public employee surely can associate and
     speak freely and petition openly, and he is protected
     by the First Amendment from retaliation for doing
     so. . . . [,] the First Amendment does not impose any
     affirmative obligation on the government to listen, to
     respond or, in this context, to recognize the
     association and bargain with it.

                                           21
                                                                      No.     2012AP2067



Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 465

(1979) (citations omitted).

       ¶39   The    plaintiffs       have      insisted     at     every     stage       of

litigation     in     this      case     that     they     are     not      arguing      a

constitutional       right   exists      to    collectively       bargain.         It    is

evident,     however,    that     they    really    are,    for     without       such    a

constitutional right, their challenge fails.                        The plaintiffs'

reliance on Lawson hinges on the defendants conditioning the

receipt of a benefit on the relinquishment of a constitutional

right, but as the plaintiffs acknowledge, collective bargaining—

—no matter the specific statutory limitations at issue——is not

constitutionally protected.

       ¶40   Put    differently,        general     employees       are     not     being

forced under Act 10 to choose between a tangible benefit and

their     constitutional     right       to    associate.         Instead,        Act    10

provides a benefit to represented general employees by granting

a statutory right to force their employer to negotiate over base

wages, while non-represented general employees, who decline to
collectively bargain, have no constitutional or statutory right

whatsoever to force their employer to collectively bargain on

any subject.        For this reason, the plaintiffs' argument must be

rejected.

       ¶41   This    point      is     vital     and      bears     repeating:          the

plaintiffs' associational rights are in no way implicated by Act

10's      modifications      to        Wisconsin's        collective        bargaining

framework.     At issue in this case is the State's implementation
of   an   exclusive     representation          system    for     permitting      public
                                          22
                                                                             No.    2012AP2067



employers and public employees to negotiate certain employment

terms    in   good    faith.        It     is     a    prerogative     of      a    state   to

establish      workplace       policy           in     a     non-public       process       in

consultation        with    only    select        groups——here,        an     organization

selected      by    the    affected      workforce           itself——and      not    others.

Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 286

(1984)     ("[a]ppellees       thus        have       no    constitutional         right    as

members of the public to a government audience for their policy

views").

    ¶42       Not    at    issue      in     this          case   is   the     plaintiffs'

constitutional right to associate to engage in protected First

Amendment activities.          The plaintiffs remain free to advance any

position,     on     any   topic,     either          individually     or     in    concert,

through any channels that are open to the public.                              See City of

Madison v. Wis. Emp't Relations Comm'n, 429 U.S. 167, 175 (1976)

(represented municipal employees have First Amendment right to

speak "[w]here the State has opened a forum for direct citizen

involvement").        Represented municipal employees, non-represented
municipal employees, and certified representatives lose no right

or ability to associate to engage in constitutionally protected

speech because their ability to do so outside the framework of

statutory collective bargaining is not impaired.                            Act 10 merely

provides general employees with a statutory mechanism to force

their employer to collectively bargain; outside of this narrow

context, to which the plaintiffs freely concede public employees

have no constitutional right, every avenue for petitioning the
government remains available.
                                             23
                                                                                    No.     2012AP2067



       ¶43     General employees may feel inclined to collectively

bargain      under     Act       10    in    order    to     compel   their          employer       to

negotiate      on     the       issue    of    base    wages,       but    this           creates   no

unconstitutional            inhibition         on     associational            freedom.            See,

e.g., Knight, 465 U.S. at 289-90 ("Appellees may well feel some

pressure to join the exclusive representation in order to give

them        . . . a        voice . . . on             particular          issues. . . . Such

pressure is inherent in our system of government; it does not

create        an      unconstitutional               inhibition           on        associational

freedom").         The defendants are not barring the plaintiffs from

joining any advocacy groups, limiting their ability to do so, or

otherwise curtailing their ability to join other "like-minded

individuals to associate for the purpose of expressing commonly

held views . . . ."                   Knox v. Serv. Emps.             Int'l Union, Local

1000, 132 S. Ct. 2277, 2288 (2012).

       ¶44     Thus,       we    conclude      that    the       plaintiffs'         reliance        on

Lawson       and     the     unconstitutional           conditions         doctrine           to     be

misplaced.         The limitations on permissible collective bargaining
subjects imposed by Act 10 do not force general employees to

choose between their constitutional right to associate and the

benefit of collective bargaining.                      Therefore, we hold that                     Wis.

Stat.       §§ 111.70(4)(mb),           66.0506,       and       118.245       do    not     violate

Plaintiffs' right to freedom of association.

       ¶45     The         dissent          suggests        we      mischaracterize                 the

plaintiffs' argument:                 "Rather than addressing plaintiff's issue

that Act 10 infringes on their constitutional right to organize
into    a    collective          bargaining         unit,    the    majority          erroneously
                                                24
                                                                      No.    2012AP2067



asserts that plaintiffs are claiming a right to bargain as a

collective bargaining unit."                Dissent, ¶194.      In doing so, the

dissent       argues       we    "ignore     over    a   century's          worth   of

jurisprudence and undermine[] a right long held sacred in our

state."      Dissent, ¶199.

       ¶46     This sweeping allegation is disappointing, not only

because it misconstrues our analysis, but also because it shows

confusion over an important area of the law.

       ¶47     The     dissent   contends    the    actual    issue    presented    in

this    case      is   whether   Act   10    infringes   on    the     associational

rights       of   public    employees       to   organize,     as     if    collective

bargaining is a peripheral matter.12                Having framed the "actual"




       12
        It is unclear whether the dissent uses the term
"collective bargaining unit" as it is defined under Act 10, or
if the term is meant to encompass a broader meaning. We assume
the   dissent  does  not   contend  that   there  is   always  a
constitutional right to organize as a "collective bargaining
unit" in a statutory framework created by the state. This would
mean the state is constitutionally obligated to create such a
framework, which is clearly not true.    See Smith, 441 U.S. at
464-65.    It is more likely the dissent means that, if a
statutory framework has been created by the state for collective
bargaining purposes, state employees have a constitutional right
to organize within that framework as a "collective bargaining
unit."

                                            25
                                                                          No.    2012AP2067



issue,      the    dissent     contends    employees       have    a   "constitutional

right to organize as a collective bargaining unit." Dissent,

¶198.    But for what purpose?

      ¶48     Without more information (ascertaining the purpose of

the association), it is impossible to determine the argument's

validity.          The   right    to   associate     is    not    derived       from    some

ethereal      notion      that     individuals      be     granted      the     right       to

organize      for    organization's        sake.         Associational        rights        are

rooted in the First Amendment's protection of freedoms of speech

and   assembly.          NAACP    v.   Alabama,     357    U.S.    449,    460    (1958).

Stated differently, the right to engage in activities protected

by    the    First       Amendment     drives      the    corresponding         right       to

associate with others in order to engage in those activities.

Roberts, 468 U.S. at 622.                 Thus, the dissent's assertion that

employees         have    an     associational      right     to       organize        in    a

collective bargaining group is neither true nor false, because



     Even adopting this understanding, however, it is unclear
how its reliance on NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1 (1937) is appropriate. In support of its proposition that
"it has long been established there is a constitutional right to
organize as a collective bargaining unit," id., the dissent
quotes, with emphasis added, language from Jones & Laughlin:
"the right of employees to self-organization and to select
representatives of their own choosing for collective bargaining
or other mutual protection without restraint or coercion by
their employer . . . is a fundamental right." 301 U.S. at 33.
Jones & Laughlin does not support the dissent's argument,
however, because the case concerned private, as opposed to
public, employers. Thus the "right" referred to by the Supreme
Court could not have been constitutional. See Laborers Local 236
v. Walker, 2014 WL 1502249, at *8 (citing The Civil Rights
Cases, 109 U.S. 3, 17-18 (1883)).

                                            26
                                                                           No.    2012AP2067



it is unclear whether, under the dissent's framing of the issue,

the employees are associating for the purpose of engaging in a

constitutionally protected activity.

      ¶49     Needless to say, this ambiguity is purposeful, because

to   complete    the     thought      would       necessarily        reveal      it   is   an

erroneous statement of the law.                     The dissent knows the First

Amendment     does     not    grant    state       employees        the   constitutional

right to collectively bargain with their state employer.                              Thus,

in framing its argument, the dissent chooses to ignore that the

right   to     associate        is    derived        from     the        constitutionally

protected activity the group of individuals wants to engage in.

No one disputes that the plaintiffs have a constitutional right

to organize with others in pursuit of a variety of political,

educational, religious, or cultural ends.                           Id.     But this is

obviously     not     what    the    plaintiffs,         or   the    dissent,      seek    to

establish.

      ¶50     The plaintiffs seek the right to organize with others

to   pursue    something      far     more    specific:       collective         bargaining
with their employer on a range of issues.                           And at the risk of

belaboring      the    point,       this     is    not    a   constitutional          right.

Smith, 441 U.S. at 464-65.

      ¶51     The dissent sidesteps this fact by asserting there is

a constitutional right to organize in a collective bargaining

unit,   but      leaves       unanswered           whether     the        employees        are

associating      for    the     purpose       of    engaging        in    an     expressive

activity     accorded    First       Amendment      protection.            This    approach
does not imbue the plaintiff's claim with merit.
                                             27
                                                                              No.   2012AP2067



     ¶52    Of    course       employees      have       a    constitutional        right     to

organize    together      for       expressive      purposes,          including     for     the

purpose of speaking to their employer on a range of issues.                                   As

we   explained,        supra     ¶¶42-43,         municipal        employees        have     the

constitutional right to form groups, meet with others, organize

as one, and speak on any topic.                     We have emphasized repeatedly

that Act 10 does not prohibit any of these things.                                    On the

contrary, the State explicitly safeguards these activities.13

     ¶53    It    is    undisputed         that    collective          bargaining     is     not

constitutionally         protected.           Indeed,         Wisconsin       is    under    no

constitutional         obligation       to        collectively         bargain      at      all.

Smith,    441    U.S.    at     464-65.            But       the   dissent     nevertheless

maintains       that    Act    10    has     so    discouraged          participation        in

Wisconsin's statutory collective bargaining process that it is

unconstitutional        and     accuses      us     of       dodging    the    question      of




     13
       See Wis. Stat. § 111.70(2) ("Municipal employees have the
right of self-organization, and the right to form, join, or
assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in lawful,
concerted activities for the purpose of collective bargaining or
other mutual aid or protection").

                                             28
                                                                         No.     2012AP2067



whether Act 10 "impermissibly punish[es] the exercise of the

right to associate."14               Dissent, ¶207.

       ¶54        The       dissent's       accusation     is    misplaced.       Act     10

certainly          presents         meaningful        difficulties    for       certified

representatives, but these difficulties have no bearing on our

analysis of the Act's constitutionality.                         The First Amendment

does    not       require       Wisconsin     to     "maintain   policies      that    allow

certain associations to thrive."                      Laborers Local 236 v. Walker,

749 F.3d 628, 639 (7th Cir. 2014).                      Likewise, "[a]n organization

cannot come up with an associational purpose——even a purpose

that involves speech——and then require support from the state in

order to realize its goal."                  Id.

            iv.    Fair Share Agreements, Certification Elections, and

                                     Payroll Deductions

       ¶55        As    noted      above,    the   plaintiffs    argue   that     several

provisions             of    Act    10,     through     cumulative    effect,         impose

       14
       Implicit in the dissent's accusation is the belief that
statutory frameworks that are based on a model of exclusive
representation are unconstitutional if any limits are placed on
the subjects upon which employees may collectively bargain. At
present, forty-one states have adopted the federal model of
exclusive representation.   See, e.g., Brief for the States of
New York, Arkansas, et. al. as Amici Curiae in Support of
Respondents, Harris v. Quinn, (2013) (No. 11-681) 2013 WL
6907713, at *8.    Of these, a significant number have imposed
limitations on the subjects of collective bargaining.      See,
e.g., Ind. Code 20–29–6–4.5; Mich. Comp. Laws § 380.1248; 115
Ill. Comp. Stat. 5/4.5; 2011 N.J. Laws ch. 78; see also Martin
H. Malin, Does Public Employee Collective Bargaining Distort
Democracy? A Perspective from the United States, 34 Comp. Lab.
L. & Pol'y J. 277, 285-88 (2013).     We note that adopting the
dissent's constitutional argument would effectively repeal a
vast amount of legislation in states across the nation.

                                                29
                                                                        No.    2012AP2067



organizational and financial penalties on general employees who

choose the statutory "privilege" of collective bargaining for

the purpose of requiring their employer to negotiate in good

faith on base wages.             Specifically, the plaintiffs contend the

following      provisions      of      Act   10,     taken       together,    impose    a

constitutionally impermissible burden on general employees:                            (1)

the prohibition of fair share agreements; (2) the requirement of

mandatory      annual       certification            elections;        and     (3)     the

prohibition     on     payroll     deductions        of    labor    organization     dues

from the wages of general employees.                   The plaintiffs argue these

features       of    Act      10       unconstitutionally            interfere       with

associational        rights      by      burdening         and   penalizing      general

employees who elect to collectively bargain.                           The plaintiffs

claim   that    general       employees       will        eventually    surrender      the

exercise of their associational rights rather than suffer the

burdens placed upon them.

    ¶56     The plaintiffs cite to no authority supporting their

contention      that     constitutional            analysis      functions     in    this
manner;    i.e.,     that     courts      must      consider       several,   otherwise

constitutional,        statutory         provisions         to   determine     if    they

collectively         amount         to       a       constitutional           infirmity.

Nevertheless, we indulge the plaintiffs in this instance and

separately      consider         the      constitutionality            of     Act    10's

"cumulative impact and effect."                   We first examine each contested

provision in isolation.               After assessing each challenged part,

we examine the contested provisions operating as a whole.
                              a.       Fair Share Agreements
                                             30
                                                                                   No.    2012AP2067



       ¶57   Fair      share      agreements           are      negotiated          arrangements

between municipal employers and certified representatives that

require all general employees, including non-represented general

employees,       to    pay     the     proportional             share       of     the     cost     of

collective       bargaining       and       contract         administration.                  Act   10

prohibits these agreements.                  See Wis. Stat. § 111.70(1)(f), (2).

The     plaintiffs       argue       this     creates           a       financial        burden     on

certified representatives and represented general employees to

bear the full cost of collective bargaining for the benefit of

the     entire     bargaining         unit,        while     allowing            non-represented

general employees in the bargaining unit to enjoy the benefits

of     representation        as      "free        riders."                For    the      certified

representative         and     its      members         to          choose       the      statutory

"privilege" of collective bargaining, the plaintiffs argue they

must    accept     the    financial          penalty       as       a    condition        of   their

associational choices to serve as the certified representative

and be represented general employees.                               The plaintiffs contend

these burdens will dissuade labor organizations from becoming
certified representatives and general employees from becoming

represented           general          employees,               and          are          therefore

unconstitutional.

       ¶58   The      plaintiffs'       argument           is       unconvincing.              First,

labor organizations "have no constitutional entitlement to the

fees of nonmember-employees."                      Davenport v. Wash. Educ. Ass'n,

551 U.S. 177, 185 (2007).               Further, as the United States Supreme

Court     recently       reaffirmed          in     Harris          v.    Quinn,       fair    share
agreements "unquestionably impose a heavy burden on the First
                                                  31
                                                              No.    2012AP2067



Amendment interests" of municipal employees who do not wish to

participate in the collective bargaining process.                   Harris v.

Quinn, 573 U.S. ___, 134 S. Ct. 2618, 2643 (2014); see also

Knox, 132 S. Ct. at 2291 ("By authorizing a union to collect

fees from nonmembers . . . our prior decisions approach, if they

do   not    cross,   the   limit   of    what   the   First   Amendment    can

tolerate").15

      ¶59    Even setting aside the question of whether fair share

agreements are constitutionally permissible,16 it is evident that


      15
       These observations are not unexpected, considering that
the presence of a right to freedom of association "plainly
presupposes a freedom not to associate."       Roberts v. United
States Jaycees, 468 U.S. 609, 623 (1984);     see also Hudson v.
Chicago Teachers Union Local No. 1, 743 F.2d 1187, 1193 (7th
Cir. 1984), aff'd sub nom. Chicago Teachers Union, Local No. 1,
AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986) ("The particular
freedom of association we are speaking of——the freedom that is
ancillary to freedom of speech——has a negative as well as a
positive dimension").   To compel an individual to pay fees to
support an organization that engages in political and economic
activities, which the individual has no interest in supporting,
raises self-apparent First Amendment concerns.
      16
       The dissent notes that the United States Supreme Court
affirmed in Harris v. Quinn, 573 U.S. ___, 134 S. Ct. 2618, 2638
(2014), that fair share agreements for "full-fledged state
employees" are constitutionally permissible. Dissent, ¶206 n.8.
To say the least, the dissent puts a positive spin on Harris's
impact   on  the   constitutional   legitimacy   of   fair  share
agreements. Harris concluded that the First Amendment prohibits
the collection of fees from Illinois home-care personal
assistants who do not want to join or support the labor
organization representing them.      It is true Harris is not
directly applicable to this case because the employees at issue
in Harris, while government-funded, were not "full-fledged state
employees."   134 S. Ct. at 2638.    Nevertheless, Harris clearly
signals that fair share agreements are constitutionally suspect
beyond the context of quasi-State employees.

                                        32
                                                             No.   2012AP2067



the prohibition of fair share agreements does not infringe on

the    associational   rights    of   general   employees     or   certified

representatives in any respect.            The First Amendment does not

compel the government to subsidize speech.           Ysursa, 555 U.S. at

357.    By logical extension, the First Amendment does not compel

the government to compel its employees to subsidize speech.

       ¶60   The   plaintiffs'   argument     that   the    financial   cost

involved in participating in collective bargaining acts as an

unconstitutional     "burden"    on   general   employees    and   certified

representatives is premised on a faulty assumption: if the State

creates a benefit for which there is no constitutional right, it

will nevertheless violate the First Amendment rights of those



     In Harris, the State of Illinois pointed to the Supreme
Court's holding in Abood v. Detroit Bd. of Educ., 431 U.S. 209
(1977), to argue the fair share agreement at issue was
permissible.   In Abood, the Supreme Court upheld a fair share
agreement requiring public school teachers in Detroit to pay
dues to the labor organization representing them, even though
they opposed public sector collective bargaining.    431 U.S. at
211.   Harris illustrates that time has not been kind to Abood.
Since it was decided in 1977, the Supreme Court's criticism of
Abood's holding and underlying rationale has become increasingly
pointed.   Two years ago, in Knox v. Serv. Emps. Int'l Union,
Local 1000, the Supreme Court noted that Abood was "something of
an anomaly."   Knox, 132 S. Ct. 2277, 2290 (2012).   Harris goes
further in expressing disapproval of Abood, explaining at length
why its analysis "is questionable on several grounds." Harris,
134 S. Ct. at 2621.    The holding of Abood may be alive in our
jurisprudence, but it is not well.      As Justice Alito broadly
stated in concluding the majority's analysis in Harris, "if we
accepted Illinois' argument, we would approve an unprecedented
violation of the bedrock principle that, except perhaps in the
rarest of circumstances, no person in this country may be
compelled to subsidize speech by a third party that he or she
does not wish to support." Id. at 2644.

                                      33
                                                                          No.        2012AP2067



who   accept       that    benefit    if   accepting         that    benefit          somehow

"burdens"      a     non-constitutionally            protected        activity.              A

successful constitutional challenge cannot be rooted in such an

unfounded premise.

      ¶61    We    conclude    that    Wis.     Stat.    § 111.70(1)(f)              and    the

third sentence of § 111.70(2), examined in isolation, do not

violate the plaintiffs' right to freedom of association.

                              b. Certification Elections

      ¶62    Prior to Act 10, general employees could petition WERC

to hold an election to designate a labor organization as the

general      employees'       certified       representative.               The        voting

requirement for certification was a simple majority of employees

in the collective bargaining unit.                   Once a labor organization

was certified, it would remain the general employees' certified

representative until thirty percent of the employees requested a

decertification election.

      ¶63    Act 10, however, requires the certified representative

of    a     collective       bargaining       unit      to    undergo           an     annual
certification election in which the representative must obtain

the vote of an absolute majority of the general employees in the

bargaining unit to retain status as the employees' certified

representative.           Wis. Stat. § 111.70(4)(d)3.b.               Further, Act 10

requires     that    the     certified     representative           pay   the        cost   of

administering the related certification elections.                        Id.

      ¶64    The plaintiffs allege that the certification election

requirements imposed by Act 10 place "organizational penalties"


                                           34
                                                                        No.        2012AP2067



on    certified     representatives      and    general   employees            that     will

eventually dissuade participation in collective bargaining.

       ¶65    The   plaintiffs'      argument     again   conflates           collective

bargaining      rights,      which    are      statutorily     guaranteed,              with

associational rights, which are constitutionally protected.                              Act

10's    certification        election    provisions       merely         specify         the

statutory requirements a certified representative must satisfy

in    order   to    exclusively      negotiate    on   behalf      of    the        general

employees in its bargaining unit.                No plausible argument can be

made that these provisions, or the "burdens" they impose on

certified     representatives,        infringe    on   the    rights          of    general

employees     to    freely    associate.         The   certification               election

provisions do not bar or obstruct general employees from joining

other "like-minded individuals to associate for the purpose of

expressing commonly held views."                 Knox, 132 S. Ct. at 2288.

Instead, the provisions at issue outline the requirements and

rights of certified representatives that wish to, on behalf of

its    bargaining      unit    employees,        compel      the    government            to
participate in statutory collective bargaining.

       ¶66    Certification           requirements            for              certified

representatives       have    existed    in    Wisconsin's     labor          laws    since




                                         35
                                                                          No.    2012AP2067



1959.17          The certification requirements imposed by Act 10 are

certainly more stringent than under the prior laws, but it is

impossible          for   these     increased      "organizational        penalties"    to

violate the plaintiffs' associational rights, when there are no

associational rights at stake.                     The certification requirements

apply solely to collective bargaining, which is wholly distinct

from        an     individual's        constitutional       right      to       associate.

Therefore, we hold that Wis. Stat. § 111.70(4)(d)3.b., examined

in     isolation,            does     not     infringe      on      the     plaintiffs'

constitutional right to associate.

                                      c. Payroll Deductions

       ¶67        Prior   to    Act    10,   municipal     employers      could    deduct

labor organization dues from the paychecks of general employees

at the employee's request.                   Act 10 prohibits this practice.

Wis. Stat. § 111.70(3g).                The plaintiffs argue this prohibition

hampers          certified     representatives       and   general    employees       both

organizationally and financially, creating an unconstitutional

burden on their associational rights.
       ¶68        The United States Court of Appeals for the Seventh

Circuit recently considered a separate legal challenge to Act 10

and, in so doing, examined the constitutionality of Act 10's

       17
       The Wisconsin State Employees Association was organized
in 1932.   In 1936, the association evolved into the American
Federation of State, County and Municipal Employees ("AFSCME").
In 1959, the legislature enacted a law giving state municipal
employees the statutory right to bargain collectively with their
employers. This law——Chapter 509, Laws of 1959, as amended over
the years——formed the basis of MERA, which is administered by
WERC.

                                              36
                                                  No.   2012AP2067



prohibition on payroll deductions for labor organizations.    The

court observed:

    The Bill of Rights enshrines negative liberties.    It
    directs what government may not do to its citizens,
    rather than what it must do for them. While the First
    Amendment prohibits "plac[ing] obstacles in the path"
    of speech . . . nothing requires government to "assist
    others in funding the expression of particular ideas,
    including political ones," Ysursa, 555 U.S. at 358,
    129 S.Ct. 1093. . . . Thus, even though "publicly
    administered payroll deductions for political purposes
    can enhance the unions' exercise of First Amendment
    rights, [states are] under no obligation to aid the
    unions in their political activities."     Ysursa, 555
    U.S. at 359, 129 S.Ct. 1093.

    In Ysursa, the Supreme Court squarely held that the
    use of a state payroll system to collect union dues
    from public sector employees is a state subsidy of
    speech. Id.    As the Court explained, "the State's
    decision not to [allow payroll deduction of union
    dues] is not an abridgment of the unions' speech; they
    are free to engage in such speech as they see
    fit." . . . Like the statutes in these cases, Act 10
    places no limitations on the speech of general
    employee unions, which may continue speaking on any
    topic or subject.
Wis. Educ. Ass'n Council v. Walker, 705 F.3d 640, 645-46 (7th
Cir. 2013).   While the Seventh Circuit's analysis of Act 10 is

not binding on this court, we find no reason to disagree with




                              37
                                                                         No.    2012AP2067



its clear and rational articulation of the law.18                         As explained

by   the    Seventh     Circuit,     the        prohibition       on    an     employer's

authorization      to     deduct    labor        organization          dues    from    the

paychecks     of    general       employees          does   not    infringe       on    an

employee's    constitutional        right       to    associate.        Further,       this

prohibition        does     not      penalize           employees         because       no

constitutional right exists for the deduction of dues from a

paycheck to support membership in a voluntary organization.                             See

Bailey v. Callaghan, 715 F.3d 956, 958 (6th Cir. 2013) (noting

the prohibition on payroll deductions "does not restrict the

unions' speech at all: they remain free to speak about whatever

     18
       The dissent distinguishes Wis. Educ. Ass'n Council, 705
F.3d 640, from this case on the basis that it "examined whether
Act 10 burdened the free speech rights of collective bargaining
units" rather than "the right of individuals to organize in a
collective bargaining unit."     Dissent, ¶201, n.7.     We are
surprised the dissent finds this distinction meaningful, given
that "[t]he particular freedom of association we are speaking of
[is] the freedom that is ancillary to freedom of speech . . . ."
Hudson v. Chicago Teachers Union Local No. 1, 743 F.2d 1187,
1193 (7th Cir. 1984), aff'd sub nom. Chicago Teachers Union,
Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292 (1986).     In
fact, as we explained supra ¶25, the reason the right to
association is constitutionally protected is because it serves
as a means of preserving other First Amendment activities, such
as free speech. Roberts, 468 U.S. at 618; see also Rumsfeld v.
Forum for Academic and Institutional Rights, Inc., 547 U.S. 47,
68 (2006) (explaining that First Amendment protection extends to
associational rights because "[t]he right to speak is often
exercised most effectively by combining one's voice with the
voices of others").

     Regardless, though we view this as a distinction without a
difference, we note that the Seventh Circuit recently held in
Laborers Local 236, 749 F.3d at 639, that "none of Act 10's
proscriptions——individually   or    cumulatively——infringe" the
associational rights of labor organizations or its members.

                                           38
                                                                                No.      2012AP2067



they wish.        Moreover, nothing in the First Amendment prevents a

State from determining that its political subdivisions may not

provide      payroll      deductions         for     union       activities         .    .   .   .")

(internal quotations omitted).

       ¶69    Accordingly,         we    hold       that    Wis.      Stat.     §    111.70(3g),

examined     in     isolation,      does       not       infringe      on     the    plaintiffs'

constitutional right to associate.

                                    d. Cumulative Burden

       ¶70    We have held that, examined in isolation, each of the

contested provisions of Act 10 does not violate the plaintiffs'

associational           rights.         While       we     do    not    concede          that    the

cumulative        approach        advocated         by     the    plaintiffs            is   either

correct      or     necessary,          we    now     conclude         that,        even     viewed

together,         the     contested          provisions          of     Act     10       are     not

constitutionally infirm.                As we discussed above, each provision

of   Act     10    that    the     plaintiffs            contend       infringes         upon    the

associational rights of certified representatives                                   and general

employees does not, in fact, do so, because in each instance,
there is no constitutional associational right implicated.

       ¶71    Viewing the provisions as a whole does not change our

analysis.         Each of the plaintiffs' arguments fails for largely

the same reason:            collective bargaining requires the municipal

employer and the certified representative to meet and confer in

good       faith.        Wis.      Stat.        § 111.70(1)(a).               The        Wisconsin

Constitution does not.              Indeed, it is uncontested that it would

be   constitutional         for     the       State       of     Wisconsin      to       eliminate
collective bargaining entirely.
                                                39
                                                                            No.     2012AP2067



       ¶72   Thus,      the    plaintiffs'            contention           that         several

provisions of Act 10, which delineate the rights, obligations,

and procedures of collective bargaining, infringe upon general

employees'     constitutional       right       to    freedom       of    association        is

unfounded.      No matter the limitations or "burdens" a legislative

enactment      places     on    the       collective           bargaining           process,

collective bargaining remains a creation of legislative grace

and not constitutional obligation.                   The restrictions attached to

the statutory scheme of collective bargaining are irrelevant in

regards to freedom of association because no condition is being

placed on the decision to participate.                       If a general employee

participates in collective bargaining under Act 10's statutory

framework,      that    general      employee          has     not       relinquished        a

constitutional right.          They have only acquired a benefit to

which they were never constitutionally entitled.

       ¶73   The First Amendment cannot be used as a vehicle to

expand   the    parameters     of    a    benefit      that     it       does     not   itself

protect.       For the reasons articulated above, we conclude that
Wis.   Stat.    §§ 111.70(4)(mb),          66.0506,          118.245,       111.70(1)(f),

111.70(3g), 111.70(4)(d)3 and the third sentence of § 111.70(2)

do not violate the plaintiffs' associational rights.

                                C. Equal Protection

       ¶74   Having    concluded      that      Act    10    does    not        violate     the

right to freedom of association under the First Amendment, we

next   consider      whether   the       Act    offends       the    equal        protection




                                           40
                                                                             No.      2012AP2067



provisions of the Wisconsin or United States Constitutions.19

The   plaintiffs     also    argue     that      Act       10    violates          the    equal

protection     rights       of    general         employees             and           certified

representatives      through     the       disparate        treatment            of      general

employees     who      choose     to        associate            with        a        certified

representative and general employees who do not.                         In considering

this argument, we first note that public employees are not a

protected     class.        We   also      recognize            that    this          challenge

implicates no fundamental rights because, as explained above,

the   right   to    collectively       bargain        is    not    the       same        as   the

plaintiffs'    constitutional        right       to    freedom          of       association.

Accordingly, rational basis review governs in our examination of




      19
       Article      I,   Section       1    of   the       Wisconsin             Constitution
provides:

      All people are born equally free and independent, and
      have certain inherent rights; among these are life,
      liberty and the pursuit of happiness; to secure these
      rights, governments are instituted, deriving their
      just powers from the consent of the governed.

     In our analysis        of the plaintiffs' equal protection claims,
we treat the rights          protected under the Wisconsin and United
States Constitutions        as coextensive. See C & S Mgmt., 223 Wis.
2d at 393-94 (noting        that Article I, Section 1 of the Wisconsin
Constitution and the         Fourteenth Amendment to the United States
Constitution afford         "substantially equivalent" limitations on
legislative power).

                                           41
                                                                           No.     2012AP2067



the   plaintiffs'          equal     protection       claims.20            We    uphold     a

legislative act under that standard if it furthers a legitimate

interest     and     if    the     challenged     classification          is     rationally

related to achieving the interest.                    See Smith, 323 Wis. 2d 377,

¶12 ("When neither a fundamental right has been interfered with

nor   a    suspect      class      been   disadvantaged       as    a     result    of    the

classification,           the    legislative      enactment        must    be     sustained

unless      it     is     patently        arbitrary     and    bears        no     rational

relationship to a legitimate government interest.") (internal

quotation marks omitted).

      ¶75    As the court of appeals observed, and the plaintiffs

concede, the merit of the plaintiffs' equal protection argument

hinges on the merit of their associational rights claim.                             Having

rejected the premise that Act 10 implicates a fundamental right,

the plaintiffs' equal protection claim necessarily fails under

rational basis review.

      ¶76    While        courts     express      various      iterations          of     the

rational basis test, we have often quoted the United States
Supreme Court's articulation in McGowan v. Maryland, 366 U.S.

420, 425-26 (1961):

      20
        Generally,   when  considering   an   equal   protection
challenge, this court will uphold the statute if we find that
the legislative classification is supported by a rational basis.
Wis. Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶221, 243
Wis. 2d 512, 627 N.W.2d 807.     This court will employ strict
scrutiny in our examination of an equal protection claim only if
the legislative classification interferes with a fundamental
right or "operates to the peculiar disadvantage of a suspect
class."    Castellani v. Bailey, 218 Wis. 2d 245, 261-62, 578
N.W.2d 166.

                                             42
                                                                         No.    2012AP2067


       [The Equal Protection Clause] permits the States a
       wide scope of discretion in enacting laws which affect
       some groups of citizens differently than others. The
       constitutional safeguard is offended only if the
       classification rests on grounds wholly irrelevant to
       the achievement of the State's objective. State
       legislatures are presumed to have acted within their
       constitutional power despite the fact that, in
       practice, their laws result in some inequality. A
       statutory discrimination will not be set aside if any
       state of facts reasonably may be conceived to justify
       it.
This     court's         presumption       that      all    legislative        acts     are

constitutional places a heavy burden on a party challenging the

statute's constitutionality under rational basis review.                                See

Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005

WI 125, ¶¶67-68, 284 Wis. 2d 573, 701 N.W.2d 440.                         If any doubt

exists       as   to     the    statute's       constitutionality,        it    must    be

resolved in favor of constitutionality.                          Id.    To prevail, a

challenger        must    establish      that       the    law   is    unconstitutional

beyond a reasonable doubt.               Id.

       ¶77    We will uphold a statute against an equal protection

challenge if the classification bears a rational relationship to
some legitimate government interest.                       Smith, 323 Wis. 2d 377,

¶12.     Notably, this requires no declaration by the State about

the    law's       purpose,        nor     evidence         supporting      the       law's

rationality.              The     actual       motivations        of     the    enacting

governmental body are irrelevant.                    FCC v. Beach Communications,

508 U.S. 307, 315 (1993).                Instead, "[i]n evaluating whether a

legislative classification rationally advances the legislative

objective, 'we are obligated to locate or, in the alternative,
construct a rationale that might have influenced the legislative

                                               43
                                                                           No.     2012AP2067



determination.'"             Ferdon, 284 Wis. 2d 573, ¶74 (citing Aicher ex

rel. LaBarge v. Wisconsin Patients Comp. Fund, 2000 WI 98, ¶57,

237 Wis. 2d 99, N.W.2d 849).

      ¶78    The plaintiffs' equal protection argument focuses on

two distinct ways in which employees are disparately treated:

first, under Act 10, general employees who choose to associate

with a certified representative are limited to negotiating on

the sole issue of base wages.                       General employees who do not

associate      with     a     certified     representative,            however,    face    no

limitations       on    what    they    may    negotiate         with    their    employer.

Second,     Act    10    prohibits      municipal         employers       from    deducting

labor organization dues from the paychecks of general employees

who     choose     to       associate     with      a     certified       representative.

General employees that belong to other organizations, however,

face no similar prohibition in having membership dues from those

organizations deducted from their paychecks.

      ¶79    We       will    address     each      challenged         classification      in

turn.
                        i.     Collective Bargaining Limitations

      ¶80    The       plaintiffs      argue       that   Act    10     violates    general

employees' rights to equal protection under the law because the

law   limits      represented       general        employees      to    negotiating       base

wages,      while       non-represented            general       employees         have    no

limitations in what they may negotiate with their employer.

      ¶81    The fact that Act 10 creates two classes of public

employees        by     whether      they      elect        to     have     a     certified
representative          for    collective        bargaining       purposes       denies    no
                                              44
                                                                          No.        2012AP2067



employee equal protection under the law.                           As the defendants

accurately point out, if the plaintiffs were correct in their

argument, any public sector bargaining framework that resulted

in     different     treatment        for     represented        and     non-represented

general employees would be unconstitutional.                        This means if the

plaintiffs'        equal     protection            argument      were     correct,         any

collective bargaining scheme would be constitutionally infirm.

        ¶82 Legislative acts must be upheld when this court can

conceive      of   any    facts      upon   which        the   legislation      reasonably

could    be   based.       Aicher,      237    Wis. 2d 99,        ¶66.         The    Seventh

Circuit determined, and we agree: Act 10's requirement that base

wage increases above the cost of living require a municipal

voter     referendum       for       certified       bargaining        agents        "promote

flexibility in state and local government budgets by providing

public employers more leverage in negotiations."                                Wis. Educ.

Ass'n Council, 705 F.3d at 654.                    We conclude this classification

scheme rationally advances the legislative purpose of improving

Wisconsin's fiscal health through enhanced control over public
expenditures.

                          ii. Payroll Deduction Prohibitions

       ¶83    The plaintiffs also argue that Act 10 violates general

employees' rights to equal protection under the law because the

law prohibits employers from deducting labor organization dues

from    the    paychecks        of    general       employees,         while    permitting

employers to deduct membership dues for other organizations.

       ¶84    As we noted above, because Act 10's payroll deduction
prohibition        does   not     implicate        the    plaintiffs'      associational
                                              45
                                                                       No.    2012AP2067



rights, we examine this provision of Act 10 under rational basis

review.

       ¶85   Act 10's prohibition on deducting labor organization

dues could be founded on the defendants' rational belief that

labor organizations are costly for the State.                     The State has a

legitimate interest, especially in the current economic climate,

in curtailing costs where possible.               The prohibition on paycheck

deductions     furthers    this       interest    by   imposing    a    burden     that

affects      the    influence    of      labor   organizations         over     general

employees who are less enthusiastic about participating in the

collective bargaining process.                 See Wis. Educ. Ass'n Council,

705 F.3d at 656-57.         This provision of Act 10 does not prohibit

general employees from paying labor organization dues; it merely

requires that employees show the initiative to pay them on their

own.

       ¶86   Accordingly,        we      conclude      Act    10's           collective

bargaining         limitations     and     payroll     deduction        prohibitions

survive      the     plaintiffs'       equal     protection   challenge          under
rational basis review.




                                          46
                                                                      No.    2012AP2067



           D. Wisconsin Stat. § 62.623 and the Home Rule Amendment

      ¶87    The   Milwaukee           ERS21     requires     that    plan    members

contribute, or have contributed on their behalf, 5.5% of their

earnable compensation.22           Milwaukee, Wis. Charter Ordinance § 36-

08-7.      Prior to the enactment of Act 10, the City of Milwaukee

and     participating           city      agencies      funded       these      member

contributions      on    behalf    of     each    participating      employee    hired

prior to January 1, 2010, while employees hired on or after

January     1,   2010,    had     to    contribute     5.5%    of    their   earnable


      21
       The Milwaukee Employe Retirement System was established
by ch. 396, Laws of 1937. In 1947, the legislature transferred
the governance, funding, and administration of the retirement
system to the City of Milwaukee. Subsequently, pursuant to Wis.
Stat. § 66.0101, the City of Milwaukee enacted Chapter 36 of the
Milwaukee Charter Ordinance, which has served as the governing
law of the Milwaukee ERS. The Milwaukee ERS provides retirement
and disability benefits, counseling and other services to
approximately 27,000 members.    The Milwaukee ERS is primarily
responsible for administering retirement and disability benefits
for employees of the City of Milwaukee, Milwaukee Metropolitan
Sewerage District, the Wisconsin Center and the Milwaukee
Housing and Redevelopment Authorities, non-certified staff of
Milwaukee Public Schools and some employees of the Milwaukee
Area Technical College. The ERS pension trust fund is a defined
benefit pension plan that provides a monthly benefit to retirees
after   reaching  a   minimum  retirement  age   depending  upon
employment history.
      22
       Earnable compensation is defined as essentially regular
base salary. Milwaukee, Wis. Charter Ordinance § 36-02-12. The
Milwaukee ERS also requires varying levels of contribution
depending on the employee's specific occupation.     For general
employees, the required contribution is 5.5%, but for police
officers, fire fighters, and elected officials, it is 7%. Id. §
36-08-7.    However, because employees classified as "public
safety employees" under Act 10 are unaffected by Wis. Stat.
§ 62.623, the plaintiffs' argument centers on those plan members
of the Milwaukee ERS classified as "general employees."

                                           47
                                                                 No.    2012AP2067



compensation on their own behalf.            See id.      Act 10 created Wis.

Stat.     §   62.623,   which   prohibits    the   City   of    Milwaukee      from

paying on behalf of a general employee the employee share of

required contributions to the Milwaukee ERS.23




     23
          Wisconsin Stat. § 62.623 provides, in part:

     Beginning on July 1, 2011, in any employee retirement
     system of a 1st class city, except as otherwise
     provided in a collective bargaining agreement entered
     into under subch. IV of ch. 111 and except as provided
     in sub. (2), employees shall pay all employee required
     contributions   for   funding   benefits   under   the
     retirement system. The employer may not pay on behalf
     of an employee any of the employee's share of the
     required contributions.

Every Wisconsin city is assigned to one of four classes.
Wisconsin statutes divide cities into the four classes, based on
population, as follows:

     - First class cities, with a population of 150,000 or over.

     - Second class cities, with              a    population     of   at     least
39,000, but less than 150,000.

     - Third class cities, with a population of at least 10,000,
but less than 39,000.

     - Fourth       class   cities,   with    a    population    of    less    than
10,000.

                                      48
                                                        No.   2012AP2067



     ¶88   The   plaintiffs24   argue   that   Wis.   Stat.   §   62.623

violates the "home rule amendment," Wis. Const. art. XI, § 3(1).

     ¶89   Cities are creatures of the state legislature and have

no inherent right of self-government beyond the powers expressly

granted to them.25   See, e.g., Van Gilder v. City of Madison, 222

Wis. 58, 73, 268 N.W. 108 (1936) (citing City of Trenton v. New



Wis. Stat. § 62.05(1).   The classes are primarily meant to be
population-based distinctions, but a city does not move to a
higher class automatically if its population increases past a
certain population threshold.      In addition to having the
necessary   population,  the  city   must  make   any   requisite
modifications in government and a proclamation must be issued by
the mayor or city manager and publish this change according to
law.    Wis. Stat. § 62.05(2).     For example, Madison has a
sufficient population to meet the first-class city population
requirement, but for purposes of statutes related to cities,
Madison remains a city of the second class.         Milwaukee is
currently Wisconsin's only first-class city.   Susan C. Paddock,
The Changing World of Wisconsin Local Government, 1997-98
Wisconsin Blue Book 119.
     24
        Wisconsin Stat. § 62.623 applies to only first-class
cities.   Consequently, Local 61 is the sole challenger for the
home rule and contract clause issues. However, for the sake of
consistency, we will still refer to Local 61 as "the plaintiffs"
in Sections 3 and 4 of this opinion.
     25
       As we explained in City of Trenton v. New Jersey, 262
U.S. 182, 187 (1923):

     In the absence of state constitutional provisions
     safeguarding it to them, municipalities have no
     inherent right of self-government which is beyond the
     legislative control of the state.    A municipality is
     merely a department of the state, and the state may
     withhold, grant or withdraw powers and privileges as
     it sees fit.     However great or small its sphere of
     action,   it  remains   the  creature  of   the  state
     exercising and holding powers and privileges subject
     to the sovereign will.

                                 49
                                                               No.    2012AP2067



Jersey, 262 U.S. 182, 187 (1923)).             Adopted in 1924, the home

rule    amendment   was   intended   to    provide   cities   and    villages26

with    greater   autonomy   over    local   affairs.27       The    home   rule

amendment, Wis. Const. art. XI, § 3(1) provides:

       Cities and villages organized pursuant to state law
       may determine their local affairs and government,
       subject only to this constitution and to such
       enactments of the legislature of statewide concern as
       with uniformity shall affect every city or every
       village. The method of such determination shall be
       prescribed by the legislature.
       26
       Wisconsin's cities and villages are sometimes referred to
as "incorporated" municipalities or "municipal corporations."
This reflects to some extent their legal status. Early in state
history, villages and cities were incorporated by special acts
of the legislature. In 1871 and 1892, constitutional amendments
were adopted prohibiting the legislature from incorporating any
city, village, or town by special act. See Wis. Const. art. IV,
§ 31.   As a result, cities and villages are now incorporated
according to general incorporation laws, and the basic outline
of city and village government is set forth in statutes
(sometimes referred to as "general charter" laws).    Wis. Stat.
chs. 61 (villages) and 62 (cities).

     The home rule amendment does not apply to counties in
Wisconsin. However, counties have home rule protection pursuant
to statute, though it is more limited than the protection
afforded by constitutional municipal home rule. See Wis. Stat.
§ 59.03(1); Jackson Cnty. v. DNR, 2006 WI 96, ¶17, 293 Wis. 2d
497, 717 N.W.2d 713.
       27
       Generally, a city or village is statutorily required to
enact a charter ordinance in order to override a state law as it
relates to the local affairs and government of the city or
village.   See Wis. Stat. § 66.0101.   It is uncontested in this
case that the City of Milwaukee properly enacted a charter
ordinance and, consequently, has properly exercised its home
rule authority in governing, funding, and administrating the
Milwaukee ERS.    Accordingly, our discussion is limited to the
question of whether the state legislature, by enacting Wis.
Stat. § 62.623, has impermissibly infringed on the City of
Milwaukee's home rule authority.

                                      50
                                                                          No.     2012AP2067



      ¶90       As the court of appeals noted in its certification to

this court, the crux of this challenge lies in the parties'

disagreement on the proper legal test to employ in determining

whether      a       legislative       enactment         violates     the       home   rule

amendment.

      ¶91       The defendants argue that our case law holds, as a

threshold        matter,      that     if    a     legislative      enactment      applies

uniformly statewide, it cannot violate the home rule amendment.

In   other      words,     the    defendants        contend   the    determination       of

whether     a    legislative       enactment        is   primarily    a     statewide    or

local concern is irrelevant, so long as the legislation "with

uniformity shall affect every city or village."                              Wis. Const.

art. XI, § 3(1).28

      ¶92       In   stark    contrast       to    the   defendants'      position,      the

plaintiffs contend that, in order to comply with the home rule

amendment, a legislative enactment must (1) affect a matter of

statewide concern, and must (2) apply with uniformity statewide.

Further, the plaintiffs argue that if a home rule municipality
has enacted a charter ordinance that relates to a matter of

purely     local      concern,     any      conflicting     state    statute      must   be

found unconstitutional.

      ¶93       In   short,      the   parties      dispute   whether       a    uniformly

applied state law may permissibly preempt the charter ordinance


      28
       The conditional phrase in the home rule amendment that
state legislation "with uniformity shall affect every city or
village" is frequently referred to in case law and secondary
authorities as the "uniformity requirement."

                                              51
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of a home-rule city if the ordinance concerns a matter of purely

local affairs.

       ¶94     Generally,      under    our    analytical        framework      for    home

rule     challenges,      we    first     establish        the    character       of   the

legislative enactment at issue, and only then consider whether

the     uniformity      requirement       is     satisfied       if    the     state   law

concerns a matter of primarily local affairs.                            However, this

home    rule     challenge      is     atypical    because       the    heart     of    the

parties'      dispute     is    not    limited     to     the    application      of   the

relevant law to the facts presented; instead, it centers on the

parties' wildly divergent positions on the applicable analytical

framework.       In their certification to this court, the court of

appeals requested that we clarify the proper legal test to apply

in constitutional home rule challenges.

       ¶95     In order to address the court of appeals' request for

clarity and resolve the parties' arguments, we first outline the

relevant analytical framework.                 In so doing, we establish that,

under     our    controlling          precedent,     no    merit       exists    in    the
plaintiffs' contention that the legislative enactment at issue

in a home rule challenge must be a matter of statewide concern

and    uniformly     applied      statewide        to   withstand       constitutional

scrutiny. After clarifying the proper analytical framework, we

apply it to the facts of this case and hold that Wis. Stat.

§ 62.623 primarily concerns a matter of statewide concern and

does    not     violate   the    home     rule     amendment      to    the     Wisconsin

Constitution.         Accordingly,        we     need     not    go    any   further    to


                                           52
                                                                           No.   2012AP2067



conclude that Wis. Stat. § 62.623 survives the plaintiffs' home

rule challenge.

                                 i.     Analytical Framework

       ¶96     For the purposes of our home rule analysis, we have

outlined three areas of legislative enactment: those that are

(1) exclusively a statewide concern; (2) exclusively a local

concern;      or    (3)   a    "mixed    bag."        See,      e.g.,    Adams   v.   State

Livestock Facilities Siting Review Bd., 2012 WI 85, ¶30, 342

Wis. 2d 444, 820 N.W.2d 404 (citing State ex rel. Michalek v.

LeGrand, 77 Wis. 2d 520, 527, 253 N.W.2d 505 (1977)).

       ¶97     If the legislative enactment concerns a policy matter

that is exclusively of statewide concern, we have held that the

home    rule    amendment       grants    no       city   or    village    authority    to

regulate the matter.             Van Gilder, 222 Wis. at 84 (holding that

"[w]hen the Legislature deals with matters which are primarily

matters of state-wide concern, it may deal with them free from

any restriction contained in the home rule amendment").29

       ¶98     Conversely, if the legislative enactment concerns a
matter of purely local affairs, home rule municipalities may

regulate those local matters and, under the home rule amendment,

state       legislation       that    would   preempt      or    make    that    municipal

regulation         unlawful,     unless       uniformly        applied    statewide,    is


       29
       However, the home rule amendment does not prohibit the
legislature from delegating to municipalities the statutory
authority to regulate particular areas that are primarily
matters of statewide concern.    See Wisconsin's Environmental
Decade, Inc. v. Dept. of Natural Res., 85 Wis. 2d 518, 533, 271
N.W.2d 69 (1978).

                                              53
                                                                               No.     2012AP2067



prohibited.         Michalek, 77 Wis. 2d at 529 (holding that "[a]s to

an area solely or paramountly in the constitutionally protected

area of 'local affairs and government,' the state legislature's

. . . preemption or ban on local legislative action would be

unconstitutional").

       ¶99    However, notwithstanding the plaintiffs' assertions to

the    contrary,       our    case       law     has    consistently          held    that    the

legislature may still enact legislation that is under the home

rule    authority       of    a     city    or    village       if     it    with    uniformity

"affect[s] every city or every village."                              Wis. Const. art. XI,

§ 3(1);       see, e.g., Adams, 342 Wis. 2d 444, ¶¶29, 36 (noting

that,     while     municipalities              may     adopt    ordinances          regulating

issues of both statewide and local concern, the legislature has

the authority to withdraw this power by creating uniform state

standards that all political subdivisions must follow); City of

West    Allis     v.    Cnty.       of    Milwaukee,       39    Wis. 2d 356,         366,     159

N.W.2d 36 (1968) (explaining that when "the matter enacted by

the legislature is primarily of local concern, a municipality
can escape the strictures of the legislative enactment unless

the     enactment       applies          with    uniformity           to    every     city     and

village."); Van Gilder, 222 Wis. at 84 (stating that "when the

Legislature deals with local affairs and government of a city,

if its act is not to be subordinate to a charter ordinance, the

act must be one which affects with uniformity every city");

State    v.     Baxter,       195    Wis.        437,    449,        219    N.W.    858     (1928)

(explaining that "where legislation of a city enacted within the
scope    of   its      home   rule       powers       comes     in    conflict       with    state
                                                 54
                                                                          No.    2012AP2067



legislation, the legislation of the city prevails over the state

legislation,       unless       the    state       legislation     affects      uniformly

every city of the state").                If the state legislation concerning

purely local affairs does not meet the uniformity requirement,

cities    and    villages        may    exempt      themselves     from    the    law     by

adopting a charter ordinance to that effect.                       See West Allis, 39

Wis. 2d at 367-68.

       ¶100 Finally,        in    cases    where       the    legislative       enactment

touches    on    an   issue      that    concerns      both    statewide        and    local

government       interests       (a    "mixed      bag"),    the   court     must      first

determine whether the matter is primarily a matter of statewide

or local concern.           After making this determination, the court

then applies the corresponding test.                        See, e.g., Michalek, 77

Wis. 2d at 528 (concluding the matter at issue was paramountly

local in nature and, accordingly, treating it as being of local

concern    for    purposes       of    home     rule   analysis);       State     ex    rel.

Brelsford v. Ret. Bd. of Policemen's Annuity & Benefit Fund of

Milwaukee, 41 Wis. 2d 77, 86, 163 N.W.2d 153 (1968) (citation
omitted) (reviewing the consistency of two home rule cases and

noting "the court was confronted with a subject of legislation

which partook both of the nature of a 'local affair' and also

that of 'state-wide concern,' but in the former case it held

that the matter was primarily a 'local affair,' while the latter

decision     held        that    the     'state-wide         concern'      feature       was

paramount."); City of Fond du Lac v. Town of Empire, 273 Wis.

333,   338-39,      77    N.W.2d 699      (1956)       (explaining      that     "where    a
matter affects the interests of local residents as well as the
                                              55
                                                                  No.    2012AP2067



interests of the people in other areas of the state, the test to

be applied in resolving the matter is that of paramount interest

. . . .").

      ¶101 In sum, our home rule case law instructs us that, when

reviewing a legislative enactment under the home rule amendment,

we apply a two-step analysis.             First, as a threshold matter, the

court      determines    whether    the    statute    concerns    a     matter    of

primarily statewide or primarily local concern.                  If the statute

concerns a matter of primarily statewide interest, the home rule

amendment is not implicated and our analysis ends.                 If, however,

the statute concerns a matter of primarily local affairs, the

reviewing court then examines whether the statute satisfies the

uniformity requirement.            If the statute does not, it violates

the home rule amendment.

                 ii.     The Plaintiffs' Local Affairs Argument

      ¶102 The     plaintiffs,      against     the   great     weight    of     our

precedent, broadly depict the home rule amendment as prohibiting

the   State    from     enacting    any    legislation    that    preempts       the
charter      ordinance    of   a    home-rule    city    when    the     ordinance

concerns a matter of exclusively local affairs.                 To support this

claim, the plaintiffs rely on this court's holdings in Michalek,

77 Wis. 2d 520, and Thompson v. Kenosha Cnty., 64 Wis. 2d 673,

221 N.W.2d 845 (1974).30
      30
       The plaintiffs also argue that matters of a "purely local
concern" are accorded more protection under the home rule
amendment than matters categorized as "primarily" local in
nature. We are unconvinced. We find nothing in our case law to
support this distinction and the plaintiffs failed to provide
any additional persuasive authority.
                                          56
                                                                          No.     2012AP2067



       ¶103 The          plaintiffs        interpret       Michalek     to      hold     that

legislation         purporting        to   preempt     a    charter     ordinance       that

concerns      a   matter       of    local    affairs       violates     the    home    rule

amendment.        In Michalek, this court upheld a City of Milwaukee

rent-withholding           charter      ordinance,         concluding    the     ordinance

primarily concerned a matter of local affairs.                                Michalek, 77

Wis. 2d at 529, 536.                In discussing the reach of the home rule

amendment, the court stated that "[a]s to an area solely or

paramountly       in     the    constitutionally          protected     area    of     'local

affairs and government,' the state legislature's delegation of

authority to legislate is unnecessary and its preemption or ban

on local legislative action would be unconstitutional."                                Id. at

529.

       ¶104 Relying         on      this    isolated       passage,     the     plaintiffs

construe      Michalek         to   hold    that   state      legislation       can     never

preempt      a    municipal         charter   ordinance       regulating        issues    of

purely      local    affairs,        regardless      of     whether     the    legislation

applies uniformly statewide.
       ¶105 The plaintiffs' reading of Michalek ignores the fact,

however, that the court held the charter ordinance and state

legislation         at    issue      did     not   actually      conflict        with    one

another.31        Therefore, though            Michalek      determined the charter
       31
       "They are not locomotives on a collision course. Rather
each moves on its own track, parallel and not too far apart,
traveling in the same direction. With the ordinance on track to
further a local affairs concern and the statute on track to
advance a matter of statewide concern, we see no constitutional
reason to derail either." State ex rel. Michalek v. LeGrand, 77
Wis. 2d 520, 530, 253 N.W.2d 505 (1977).

                                              57
                                                                          No.    2012AP2067



ordinance concerned a matter of primarily local affairs, the

court    did   not   need    to       reach    the    question       of    whether       the

contested state legislation satisfied the uniformity requirement

of the home rule amendment.                   In fact, the court in Michalek

clarified this very point:

      With no conflict between ordinance and statute, and no
      potential for conflict, we do not give consideration
      to the undiscussed question whether the home rule
      amendment reference to "enactments of legislative and
      state-wide concern as shall with uniformity affect
      every city and every village," (Art. XI, sec. 3,
      Wis.Const.) includes or does not include a statute
      applying   only   to   counties   with  over   100,000
      population.
Michalek, 77 Wis. 2d at 530 n.16.                     Put differently, Michalek

makes plain that if the court had reached a different conclusion

and found the legislation and charter ordinance did, in fact,

conflict, the court would have proceeded by examining whether

the statute applied uniformly statewide.                       Read in this context,

Michalek does not hold that state legislation that conflicts

with a charter ordinance concerning a matter of local affairs is

per     se   unconstitutional.            The    plaintiffs'         assertion          that
Michalek     supports   such      a    proposition        is    entirely        misplaced.

Michalek is in accord with this court's long-held rule that when

the charter ordinance of a home rule city concerns a matter of

local affairs, conflicting legislation must be uniformly applied

statewide to satisfy the home rule amendment.

      ¶106 The    plaintiffs'         reliance       on   Thompson    hinges       on    the

following language:         "Sec. 3, art. XI of the constitution places
two limitations on the legislature's power to enact statutes

                                          58
                                                                             No.      2012AP2067



interfering with city and village affairs: (1) The subject of

the statutes must be a matter of statewide concern; and (2) such

statutes     must     uniformly        affect       all      cities        and     villages."

Thompson, 64 Wis. 2d at 683.                 The plaintiffs argue that this

explicit statement that two limitations exist——statewide concern

and uniformity——demonstrates that the uniformity of legislation,

alone, does not satisfy the home rule amendment.

      ¶107 We       acknowledge       the     language          that       the     plaintiffs

highlight in Thompson appears, at first blush, to conflict with

this court's prior interpretations of the home rule amendment.

However,    a     close    reading     reveals          that    the       implied     rule   in

Thompson cited to by the plaintiffs——that, in matters concerning

local     affairs,        the   home        rule        amendment          requires       state

legislation to concern a matter of statewide concern and be

uniformly applied statewide——is never employed by the Thompson

court and is, in fact, internally inconsistent with the court's

own analysis.

      ¶108 In      Thompson,     we     examined         a     challenge         to   a   state
statute    that     permitted     counties         to    create       a    county     assessor

system.     Id. at 676.         Specifically, the challengers argued that

the     statute     violated     the     home       rule       amendment         because     it

impermissibly        superseded       the     assessment          powers         of    cities,

villages, and towns within such counties.                       Id. at 682-83.            After

setting out the language emphasized by the plaintiffs in this

case, the Thompson court then considered whether the state law

at issue violated the home rule amendment.                                First, the court
determined that the subject matter of the legislation, which
                                            59
                                                      No.   2012AP2067



dealt with property tax assessments, was primarily a statewide

concern.    Id.   at   686.   Subsequently,    in   considering   the

uniformity requirement, the Thompson court noted:

    th[e] uniformity limitation only applies if the
    subject of the statute concerns primarily local
    affairs.   If the subject of the legislation is of
    statewide concern, the uniformity restriction is
    inapplicable. . . . Since we have concluded that the
    subject of [the state law at issue] was primarily a
    matter   of    statewide   concern,    the   uniformity
    requirement of the home rule amendment is not
    applicable here. . . . Thus, even if [the state law at
    issue] concerns local affairs, and must therefore
    affect cities and villages uniformly, we hold that
    this uniformity requirement is not violated.
Id. at 686-87 (emphasis added).      Thus, Thompson held that, even

had the court decided the state law at issue concerned a matter

of local affairs rather than a statewide concern, the statute

would still be upheld because it "applie[d] with equal force

throughout the state."   Id. at 688.    We find it significant that

the reasoning and holding in Thompson read as a whole, unlike

the isolated passage relied upon by the plaintiffs, harmonizes

with controlling precedent.
    ¶109 The reasoning and holdings of Thompson and Michalek

are consistent with the entire body of our longstanding home

rule jurisprudence and we find no conflict in our precedent to




                                60
                                                                     No.     2012AP2067



be    resolved.32        Consequently,    we     perceive      no    merit    in     the

plaintiffs'      broad     characterization       of    the    legislative         power

conferred     to     municipalities      by      the    home    rule       amendment.

Instead,    we     reaffirm    that,     while    the    home       rule    amendment

authorizes municipal regulation over matters of local concern

and   protects      that   regulation    against       conflicting         state   law,

state law will still preempt that municipal regulation if it

"with uniformity . . . affect[s] every city or every village."

Wis. Const. art. XI, § 3(1).




       32
       In fact, the plaintiffs' interpretation of our home rule
jurisprudence appears to be as novel as it is mistaken.       In
surveying the ample scholarship on the topic of state
constitutional home rule, we are unable to find a single
interpretation of our home rule precedent that aligns with the
plaintiffs' argument that no state law may preempt a charter
ordinance that concerns a matter of purely local affairs. See,
e.g., Kerry A. Burchill, Madison's Minimum-Wage Ordinance,
Section 104.001, and the Future of Home Rule in Wisconsin, 2007
Wis. L. Rev. 151, 164-65 ("[Wisconsin's home rule] amendment
does provide an exception which permits the legislature to
regulate an area of local concern if the enactment uniformly
applies to every city or village in the state."); Robert D.
Zeinemann, Overlooked Linkages Between Municipal Incorporation
and Annexation Laws: An in-Depth Look at Wisconsin's Experience,
39 Urb. Law. 257, 266 n.64 (2007) ("Constitutional home rule in
Wisconsin provides only minimal autonomy to cities and villages
because, even in matters of primarily local concern, the
Wisconsin legislature may enact legislation controlling those
issues if the act uniformly applies to every city or village in
the state."); see also 1 Chester James Antieau, Mun. Corp. Law.
§ 3.20 (1995); Douglas A. Yanggen & Leslie L. Amrhein,
Groundwater Quality Regulation: Existing Governmental Authority
and Recommended Roles, 14 Colum. J. Envtl. L. 1, 18 (1989);
Robert W. Hansen, Municipal Home Rule in Wisconsin, 21 Marq. L.
Rev. 2, 82 (1937); Eugene McQuillin, 2 McQuillin Mun. Corp. §
4:82 (3d ed.).

                                         61
                                                                      No.   2012AP2067



      ¶110 Having reaffirmed our established analytical framework

for home rule amendment challenges, we now apply that framework

to the legislative enactment at issue, Wis. Stat. § 62.623.

                             iii. Statewide or Local Concern

      ¶111 We first address whether Wis. Stat. § 62.623 concerns

a   matter   of   exclusively       statewide     concern,      exclusively      local

affairs, or a mix of both statewide and local interests.                           The

defendants argue that Wis. Stat. § 62.623 addresses a matter of

statewide concern.             Specifically, the defendants contend that

the legislature, in enacting Act 10, clearly believed that the

entire State of Wisconsin——including its municipalities——was in

a financial crisis.             In order to effectively respond to this

crisis, the legislature deemed it essential to lower the costs

associated      with    public      employees     statewide.          Further,     the

defendants    cite      to    the   State's     "shared    revenue"    program    and

other   state     aid    provided     to   counties       and   municipalities     to




                                           62
                                                                    No.    2012AP2067



bolster      the     argument    that   local     spending     is   an     issue    of

statewide concern.33

       ¶112 The plaintiffs, on the other hand, argue that Wis.

Stat.       § 62.623,    by     prohibiting     the    City   of    Milwaukee      and

participating city agencies from paying the employee share of

contributions to the Milwaukee ERS, unconstitutionally infringes

on a matter of purely local concern.                   Both the plaintiffs and

the dissent34 cite to Van Gilder for the proposition that issues

tied to a municipality's local spending powers——here, the City

of Milwaukee's administration of its own retirement system——is

quintessentially a local affair.              222 Wis. at 81-82 (quoting J.

Cardozo in Adler v. Deegan, 167 N.E. 705, 713 (1929)) ("There

are some affairs intimately connected with the exercise by the

city    of     its    corporate     functions,        which   are   city     affairs


       33
       State-generated   revenues   are   distributed    to   local
governments pursuant to the State's "shared revenue" program.
See, e.g., Wis. Stat. ch. 79.         In 2011, the legislature
allocated   $824,825,715  for   distribution   to   counties    and
municipalities in fiscal year 2011 and $748,075,715 for
distribution "in 2012, and each year thereafter."       Wis. Stat.
§ 79.01(2).     The plaintiffs vehemently disagree with the
defendants' depiction of the State's shared revenue program,
noting that under the program a municipality is unable to
increase expenditures in order to receive more funding from the
State.   The plaintiffs are correct that nothing in the record
supports the defendants' implication that the shared revenue
program contributes to, or is affected by, the administration of
the Milwaukee ERS.    Accordingly, the defendants' reference to
the shared revenue program merely provides us with an
illustration   of   the   uncontested   fact   that    there    are
intergovernmental   transfers   between   the   state     and   its
municipalities.
       34
            Dissent, ¶223.

                                         63
                                                                            No.        2012AP2067



only . . . . Most important of all perhaps is the control of the

locality over payments from the local purse").

       ¶113 This court has long recognized that the terms "local

affairs" and "statewide concern" in the home rule amendment are

problematically vague.               See, e.g., Van Gilder, 222 Wis. at 73

(observing      that       the    phrases      "local      affairs"      and      "statewide

concern"      are    "practically        indefinable").            Further,       the     terms

"local      affairs"       and    "statewide        concern"       carry    the        risk   of

oversimplifying           reality:      the    "functions        of    state      and     local

governments necessarily overlap," Van Gilder, 222 Wis. at 64,

and, moreover, the nature of governmental functions can change

over     time.35          Consequently,        home       rule     challenges          are,   by

necessity, fact-specific inquiries, and determinations are made

on an ad hoc basis.                See, e.g., California Fed. Sav. & Loan

Ass'n. v. City of Los Angeles, 812 P.2d 916, 925 (Cal. 1991)

(noting       that    a    "municipal         affair"      and     "statewide          concern"

represent "legal conclusions rather than factual descriptions").

       ¶114    Here,        the      public         policy         matter         at      issue
unquestionably touches on matters of both statewide and local

concern.        The    administration          of    a    city's      retirement        system,

entirely       self-reliant        in    both       its    management       and        funding,

certainly concerns a matter of local affairs. As the plaintiffs

correctly observe, the regulation of local budgetary policy and


       35
       See, e.g., Helmer v. Superior Court of Sacramento Cnty.,
191 P. 1001, 1001 (Cal. 1920) (noting that "[t]he term
'municipal affairs' is not a fixed quantity, but fluctuates with
every change in the conditions upon which it is to operate").

                                              64
                                                                              No.    2012AP2067



spending         have     long    been    considered         matters    of    purely       local

concern.         See,    e.g.,    Van     Gilder,     222    Wis.    58.      Further,       the

enactment of Act 10 negatively impacts the City of Milwaukee's

sensible interest in offering greater employee benefits in order

to attract personnel.                  In fact, the initial legislative purpose

in authorizing the establishment of the Milwaukee ERS was to

"strengthen the public service in cities of the first class by

establishing             the     security       of    such     retirement           benefits."

§ 31(1), ch. 441, Laws of 1947.

       ¶115 Conversely, the statewide regulation of public sector

employee         expenditures         during    a    period    of    economic       recession

unquestionably involves a matter of statewide importance.                                    The

terms       of    the    public       employer-employee        relationship         have    long

been the subject of statewide legislation in Wisconsin.                                       In

fact, Wisconsin was the first state in the nation to establish a

framework          for     public        employees      to     engage        in     collective

bargaining.36            Since that time, the state legislature has enacted

numerous statutes dealing with a broad range of issues relating
to the public employer-employee relationship.                              See, e.g., Wis.

Stat. § 111.01 (governing standards regarding employment peace);

Wis.             Stat.         § 111.321-325            (prohibiting                employment

discrimination);               Wis.     Stat.       § 111.70     (governing          statewide

collective          bargaining           framework);          Wis.     Stat.        ch.      230


       36
        See, Todd C. Dvorak, Heeding "The Best of Prophets":
Historical Perspective and Potential Reform of Public Sector
Collective Bargaining in Indiana, 85 Ind. L.J. 701, 707-08
(2010).

                                                65
                                                                                 No.     2012AP2067



(establishing civil service protections for state employees).

Further,    statewide       legislation             aimed    at     improving          the   fiscal

health   of   the    state        budget       is    indisputably          a     general       state

concern.

    ¶116      Having       concluded          the    conflict        between          Wis.     Stat.

§ 62.623    and     the    Milwaukee          Charter       Ordinance          implicates       both

statewide     and         local     concerns,           we     apply           the     "test     of

paramountcy."         As     explained          supra        ¶100,    when        a    challenged

legislative        enactment        impacts           both         statewide          and      local

interests,     we     must        determine          whether        the        legislation      "is

primarily     or     paramountly          a     matter        of     'local          affairs     and

government'       under     the    home       rule    amendment           or    of    'state-wide

concern' under the exception thereto . . . ."                              Michalek, 77 Wis.

2d at 528.

    ¶117 Our home rule jurisprudence instructs this court, in

confronting the "heavy burden of developing the lines" between

matters of statewide and local concern, to consider whether the

conflict between the charter ordinance and the statute at issue
more greatly concerns the people of the entire state or the




                                               66
                                                                    No.       2012AP2067



people in the municipality.37         See, e.g., Michalek, 77 Wis. 2d at

527 (noting "that many matters while of 'state-wide concern,'

'affecting the people and state at large somewhat remotely and

indirectly,    yet     at    the    same    time        affect    the     individual

municipalities directly and intimately, can consistently be, and

are, 'local affairs'. . . .'") (quoting State ex rel. Ekern v.

City of Milwaukee, 190 Wis. 633, 640, 290 N.W. 860 (1926));

Brelsford,    41     Wis. 2d at     86-87    (reasoning          that     a    charter

ordinance    regarding      the    regulation      of    pension    benefits        for

Milwaukee police officers who teach upon retirement is of more

interest to Milwaukee than the state at large); Fond du Lac, 273

Wis. at 338-39 (explaining that "where a matter affects the

interests of local residents as well as the interests of the

people in other areas of the state, the test to be applied in

resolving the matter is that of paramount interest . . . .").




     37
       This is a rational approach considering that, in weighing
conflicts between state and local regulation, the policy matter
at issue in a local ordinance will not always equate to the
policy matter at issue in the state legislation. Though this is
unavoidable, it is also decidedly problematic, given that the
label affixed to the matter at issue often governs whether there
is a constitutional violation.     The considerable significance
this analytical approach ascribes to the box a policy matter is
placed in exacerbates the risk of a cavalier, mechanistic
jurisprudence.   Accordingly, given that the policy matters of
conflicting state and local regulations often diverge in scope
and purpose, and their categorization is of substantial
consequence, we conclude that our established approach of
categorizing the policy matters of conflicting regulations by
examining whether the concern arising from the conflict is
greatest within the municipality or the state to be sensible.

                                       67
                                                                               No.    2012AP2067



     ¶118 Under       this      approach,       while      we    recognize            that    the

impact of Act 10 on both the Milwaukee ERS and the City of

Milwaukee is significant and unquestionably touches on a matter

of local affairs, we conclude the Act primarily implicates a

matter    of   statewide        concern.        The     State      has     a        substantial

interest in maintaining uniform regulations on public pension

plans in order to reduce the fiscal strain caused by state and

local expenditures for public employee compensation.                                   Further,

the State is obligated to maintain a functioning civil service

system.        Public      employees       work       in    areas         of        fundamental

importance, ranging from education and public health, to housing

and sanitation.          Without question, the State has an interest in

seeking to safeguard the vitality of these essential services in

times of economic uncertainty and duress.38

     ¶119      We   do    not     suggest       that       the     City        of     Milwaukee

mismanaged its retirement system or that Governor Walker and

state     legislature      enacted    a    law    that       has    been        or     will    be

effective      in   fulfilling       its        purported        objectives.                 Such
political inquiries are beyond the purview of this court.                                     The

legislature     has      broad    latitude       to    experiment          with        economic

     38
       The dissent suggests that our conclusion rests primarily
on the fiscal concerns underlying and leading up to the
enactment of Act 10.   Dissent, ¶219.  Wisconsin's considerable
financial interest in alleviating a massive budget shortfall is
certainly a meaningful factor in our analysis.         But, as
discussed supra ¶¶115, 118, we also take into account several
other factors, including the scope of the legislation, the
State's interest in maintaining essential public services, and
its historic role in regulating matters affecting the employer-
employee relationship.

                                           68
                                                                    No.    2012AP2067



problems and we do not presume to second-guess its wisdom.                         See

Ferguson v. Skrupa, 372 U.S. 726 (1963). Instead, our review is

limited      to    determining    whether      the    policy    matter    at     issue

between      the    conflicting    state      and    local   regulation     is   best

described as involving a local affair or a statewide concern.

      ¶120        Here, the state legislation at issue, Act 10, was

enacted by the legislature during a period of intense fiscal

uncertainty.39        The National Association of State Budget Officers

noted      that    2010    "presented   the    most    difficult   challenge       for

states' financial management since the Great Depression. . . . "

Nat'l Governors Ass'n & Nat'l Ass'n of State Budget Officers,

The Fiscal Survey of States vii (June 2010).                   At the time Act 10

was   enacted,       the   Department   of     Administration      was    predicting




      39
       The dissent takes issue with our review of the policy
concerns underlying Act 10 as a whole, rather than "the specific
statute at issue, Wis. Stat. § 62.623(1)." Dissent, ¶¶226, 231.
The dissent's position illustrates the importance of how one
frames the policy matter at issue.      The dissent defines the
issue by looking solely at the local ordinance. This technique
demonstrates what happens when one adopts a results-driven
approach.   As we explained supra note 37, we conclude the more
sensible approach is to balance the interests of both the state
legislation and the charter ordinance at issue. The inquiry is
not simply whether there is an interest of local affairs.
Indeed, we acknowledge repeatedly that the interests of the City
of Milwaukee are heavily implicated here.   Rather, we hold the
appropriate inquiry is whether the concern arising from the
conflicting regulation is greatest within the municipality or
the state.

                                         69
                                                                   No.     2012AP2067



Wisconsin    was   facing     a   $3.6    billion      dollar   budget    deficit.40

Nationwide, analysts projected that states would face close to

$300 billion in budget shortfalls between fiscal years 2009 and

2012.

      ¶121 Enacted during an emergency legislative session, and

referred to broadly as the Budget Repair Bill, the scope of Act

10 is extraordinary.            It addresses a broad range of subjects,

including health insurance premiums, collective bargaining of

state employees, retirement contributions for public employees

statewide, and modifications to the earned income tax credit.

      ¶122   It    is   significant       that   Act    10   impacts     the    entire

state.       Act   10    is   not    narrow      and    particularized         in   its

application; rather, it is a broad and comprehensive law that

applies, not just to City of Milwaukee employees, but to every

general employee in the State of Wisconsin.                  Governor Walker and

the   legislature       determined       that,   considering      the    challenges

presented by the grim economic climate, it was imperative to

make drastic public policy changes, in several areas of the law,
spanning the entire state.

      ¶123 We find that, given the facts presented in this case,

the     conflicting     state     and    local    regulations      are     of       more

paramount concern within the state as a whole than in the City


      40
         Wisconsin   Department   of  Administration,  State   of
Wisconsin     2011-13      Executive     Budget     in     Brief,
http://www.doa.state.wi.us/Documents/DEBF/Budget/Biennial%20Budg
et/Biennial%20Budget%20Archives/2011-
13%20Biennial%20Budget/2011-13_BIB.pdf, (last visited June 19,
2014).

                                          70
                                                                      No.    2012AP2067



of Milwaukee.       Accordingly, we conclude that Wis. Stat. § 62.623

and    related     statutes      are   primarily       a   matter     of     statewide

concern.

      ¶124 We note the plaintiffs insist this conclusion cannot

be reached without ignoring the deference owed to a statement of

intent included in a 1947 legislative amendment pertaining to

the Milwaukee ERS.41           We find this argument unpersuasive.                   The

statement of intent referenced by the plaintiffs provides:

      For the purpose of giving to cities of the first class
      the largest measure of self-government with respect to
      pension annuity and retirement systems compatible with
      the constitution and general law, it is hereby
      declared to be the legislative policy that all future
      amendments and alterations to this act are matters of
      local affair and government and shall not be construed
      as an enactment of state-wide concern.
§ 31(1), ch. 441, Laws of 1947.                The plaintiffs argue that this

statement of intent preserved the City of Milwaukee's autonomy

in    managing     the   Milwaukee       ERS    and    precluded      future       state

legislative enactments that infringe on that autonomy.

      ¶125 The plaintiffs overstate their case.                 To be sure, this

court has held that legislative determinations regarding whether

a policy matter constitutes a "statewide concern" or a matter of

"local     affairs,"     is    entitled   great       weight   when    categorizing

legislative acts.             See, e.g., Van Gilder, 222 Wis. at 73-74

(noting     that   "[e]ven      though    the    determination        made    by   [the

      41
       In 1937, the legislature enacted a law that authorized
the City of Milwaukee to create the Milwaukee ERS. See ch. 396,
Laws of 1937.    In 1947, the legislature amended that act and
included the statement of intent referenced above.    § 31, ch.
441, Laws of 1947.

                                          71
                                                                           No.   2012AP2067



legislature] should be held not to be absolutely controlling,

nevertheless it is entitled to great weight because matters of

public policy are primarily for the legislature").

      ¶126 However, we reject the plaintiffs' contention that the

legislature's declaration in 1947 that the Milwaukee ERS is a

matter of local concern is an immutable determination.                               While

the   legislature        in       1947    may    have    intended    to     block   future

legislatures from regulating public sector pension funds in the

City of Milwaukee, it unquestionably lacked that power through

direct legislative action, let alone through a general statement

of legislative intent.                   Wisconsin case law has long held that

"[o]ne      legislature           may     not     bind     a   future      legislature's

flexibility to address changing needs.                         Thus, one legislature

may not enact a statute which has implications of control over

the   final    deliberations             or    actions    of   future      legislatures."

Flynn v. Dep't of Admin., 216 Wis. 2d 521, 543, 576 N.W.2d 245

(1998) (internal quotation marks omitted).

      ¶127 Further, the nature of public policy matters is not
static,42     and   as        a    result,       the     character    of    governmental

functions     can   change         over       time.      Plainly,    the   legislature's


      42
       See, e.g., Kenneth E. Vanlandingham, Municipal Home Rule
in the United States, 10 Wm. & Mary L. Rev. 2, 291 (1968);
Robert W. Hansen, Municipal Home Rule in Wisconsin, 21 Marq. L.
Rev. 2, 77 (1937) ("What is quite local in character today may
not be so tomorrow. In the 'horse-and-buggy' days of an earlier
era it is quite conceivable that maintenance of village streets
could be placed in the category of local affairs.     Today when
trucks and busses drive from city to city, village to village is
it still so?").

                                                72
                                                                                No.    2012AP2067



determination in 1947 that pension and retirement plans are a

local concern does not mean it is an accurate portrayal of how

pension      and      retirement    plans        impact   the      fiscal       realities      of

Wisconsin        in    2014.        See,    e.g.,     1    Chester       James          Antieau,

Municipal Corporation Law § 3.40, at 3-108 (1995) ("The danger[]

to   be     avoided      [is] . . . a       temptation        to    consider           something

'state' or 'local' because it was so denominated fifty years

ago").43

       ¶128 The        ultimate      determination         whether          a        legislative

enactment is primarily a matter of local or statewide concern

rests with this court and not the legislature.                           Van Gilder, 222

Wis. 58.         Thus, while we give deference to the legislature's

1947      proclamation,        it   is     not    conclusive        in   our          home   rule

analysis of Wis. Stat. § 62.623.

       ¶129 Therefore, for the reasons explained above, we hold

that      Wis.     Stat.    § 62.623        concerns      a     matter          of     primarily

statewide concern.             Accordingly, we need not go any further to

conclude that Wis. Stat. § 62.623 survives the plaintiffs' home
rule challenge.


       43
       Act 10 did not provide an express legislative declaration
that the apportionment of contributions to the Milwaukee ERS is
a matter of statewide concern.    The defendants argue, however,
that Act 10 contained an implicit determination that it was a
matter of statewide concern because of the restrictions Wis.
Stat. § 62.623 imposed. The plaintiffs counter that no case law
supports the notion that implicit legislative determinations are
relevant in home rule analysis. Because we decide the parties'
statewide concern arguments on other grounds, we do not need to
address the issue of whether arguably implicit legislative
determinations should be accorded weight.

                                             73
                                                                  No.     2012AP2067



            E. Wisconsin Stat. § 62.623 and the Contract Clause

       ¶130 Having determined that Wis. Stat. § 62.623 does not

violate the home rule amendment, we turn to whether the statute

violates     the   constitutionally          protected   right   of   parties     to

contract with each other.

       ¶131 As we explained supra ¶87, the Milwaukee ERS44 requires

that    plan    members   contribute,        or   have   contributed    on    their

behalf,     5.5%   of   their   earnable       compensation.      Prior      to   the

enactment of Act 10, the City of Milwaukee funded the member

contributions of each municipal employee hired prior to January

1, 2010.       Wisconsin Stat. § 62.623, created by Act 10, prohibits

the City of Milwaukee from making these contributions to the

Milwaukee ERS on the plan member's behalf.

       ¶132 Chapter       36    of     the     Milwaukee    Charter     Ordinance

("Chapter 36") establishes the framework of the Milwaukee ERS.

The plaintiffs argue these provisions contractually guarantee

that the City of Milwaukee will fund the member contributions to

the Milwaukee ERS on behalf of each participating employee hired
prior to January 1, 2010, and that, consequently, Wis. Stat.

§ 62.623       constitutes       an      unconstitutional        impairment       of

contractual obligations.             The defendants counter that Wis. Stat.

       44
       The Milwaukee ERS is a defined benefit plan.     Defined
benefit plans consist of a general pool of assets, rather than
individual dedicated accounts, and provide plan members, upon
retirement, a fixed periodic payment.     See, e.g., Comm'r v.
Keystone Consol. Indus., Inc., 508 U.S. 152, 154 (1993).
Generally, the asset pools of defined benefit plans may be
funded by employee contributions, employer contributions, or a
combination of both. Id.

                                          74
                                                                              No.    2012AP2067



§ 62.623       impairs       no    contractual        rights     between       the    City    of

Milwaukee and its employees.                      In the alternative, the State

argues that even if an impairment of contractual rights exists,

a     significant         and     legitimate         public     purpose      justifies       the

impairment and the legislation is narrowly tailored to serve

that purpose.

                           i. General Contract Clause Principles

       ¶133 The Wisconsin Constitution prohibits the State from

impairing          its    contractual      obligations.              Dairyland       Greyhound

Park,       Inc.    v.    Doyle,    2006    WI       107,     ¶51,   295     Wis. 2d 1,      719

N.W.2d 408.          The Contract Clause of the Wisconsin Constitution

provides: "[n]o bill of attainder, ex post facto law, nor any

law     impairing         the     obligation      of     contracts,        shall     ever     be

passed. . . . "            Wis. Const. art. I, § 12.45

       ¶134 In       evaluating       a    claim       brought       under    the    Contract

Clause,       we         first    consider       whether        the     contested        state

legislation         has     "operated      as    a    substantial       impairment       of    a

contractual          relationship."             Allied      Structural       Steel     Co.    v.
Spannaus, 438 U.S. 234, 244 (1978).                            This inquiry has three

components: (1) whether there is a contractual relationship, (2)

       45
       Similarly, the Contract Clause of the United States
Constitution provides, in relevant part: "No State shall . . .
pass any Bill of Attainder, ex post facto Law, or Law impairing
the Obligation of Contracts . . . ." U.S. Const. art. I, § 10,
cl. 1.   Although our interpretation of the Contract Clause of
the   Wisconsin   Constitution   need    not   parallel    federal
interpretations of the Contract Clause of the United States
Constitution, our prior decisions have relied upon the decisions
of the United States Supreme Court for guidance.        Chappy v.
LIRC, 136 Wis. 2d 172, 186, 401 N.W.2d 568 (1987).

                                                75
                                                                                  No.   2012AP2067



whether a change in law impairs that contractual relationship,

and (3) whether the impairment is substantial.                                   Dairyland, 295

Wis. 2d 1, ¶261 (Prosser, J., concurring in part/dissenting in

part).

      ¶135 The       inquiry        does       not       end   when   the    reviewing       court

finds a contractual relationship exists and that the change in

law   constitutes         a    substantial           impairment       of    that     contractual

relationship.         If the legislative act constitutes a substantial

impairment      to    a       contractual           relationship,       it       will   still   be

upheld if a significant and legitimate public purpose for the

legislation exists.                 Id., ¶56.             "Although the public purpose

need no longer address an emergency or temporary situation, it

should be directed towards remedying a broad and general social

or economic problem" as opposed to benefiting a narrow special

interest.       Chappy v. LIRC, 136 Wis. 2d 172, 188, 401 N.W.2d 568

(1987); see also Energy Reserves Grp., Inc. v. Kansas Power &

Light Co., 459 U.S. 400, 412 (1983).

      ¶136 Finally,            if    a    significant           and     legitimate        purpose
exists    for   the       challenged       legislation,            "the     question      becomes

whether     the      legislature's              impairment         of      the     contract      is

reasonable and necessary to serve an important public purpose."

Wis. Prof'l Police Ass'n v. Lightbourn, 2001 WI 59, ¶149, 243

Wis. 2d 512, 627 N.W.2d 807.

      ¶137 As         the       court          of        appeals      explained         in      its

certification,         under        the    established           framework        for    Contract

Clause analysis, the plaintiffs' challenge presents two issues:
(1)   whether        Chapter        36    of    the       Milwaukee        Charter      Ordinance
                                                    76
                                                                         No.     2012AP2067



contains a contractual guarantee that the City of Milwaukee will

fund the member contributions on behalf of each participating

employee     hired     prior       to       January   1,    2010,      and     (2)    if    a

contractual      right      exists,            whether      there       has     been        an

impermissible impairment of the contract.46

                 ii.    Contractual Rights Under Milwaukee ERS

     ¶138    A   legislative        enactment         is   presumed     not    to     create

"contractual or vested rights but merely declares a policy to be

pursued until the legislature shall ordain otherwise."                                 Nat'l

R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470

U.S. 451, 466 (1985) (internal quotation marks omitted); see

also U.S. Trust Co. v. New Jersey, 431 U.S. 1, 17 n.14 (1977) (a

statute     is   "treated      as       a    contract      when   the    language          and

circumstances     evince       a    legislative        intent     to    create       private

     46
       The   defendants    raise   a    separate   argument    that
municipalities are not empowered to enter into contracts that
are not subject to subsequent amendments by the legislature.
The defendants misconstrue our case law by inaccurately framing
the point of law they are actually contesting.        The question
presented is whether a municipality is empowered to enter into
contracts with third parties that create a vested contractual
relationship that is protected by the constitution.        Our case
law is clear on this point.         Municipalities may "lawfully
enter[] into contracts with third persons which . . . will be
protected by the constitution . . . ." Douglas Cnty. v. Indus.
Comm'n, 275 Wis. 309, 315, 81 N.W.2d 807 (1957) (quoting Town of
Holland v. Village of Cedar Grove, 230 Wis. 177, 189, 282 N.W.
111 (1938); see also Superior Water, Light & Power Co. v. City
of Superior, 263 U.S. 125, 135-37 (1923) (in interpreting
Wisconsin law, holding that municipalities may enter into
contracts where rights are acquired or liabilities incurred and
the    state    legislation    impairing     those     rights    is
unconstitutional); State ex rel. O'Neil v. Blied, 188 Wis. 442,
447, 206 N.W. 213 (1925).      The defendants' assertion to the
contrary is unfounded.

                                              77
                                                                             No.    2012AP2067



rights of a contractual nature enforceable against the State").

Thus,      courts       employ      a       "very        strong"       presumption         that

"legislative enactments do not create contractual rights."                                 Dunn

v. Milwaukee Cnty., 2005 WI App 27, ¶8, 279 Wis. 2d 370, 693

N.W.2d 82.

     ¶139 The           threshold       requirement             to     recognize       public

contracts        has     been    referred           to    as     the    "unmistakability

doctrine."        Parker v. Wakelin, 123 F.3d 1, 5 (1st Cir. 1997).

The unmistakability doctrine is a canon of construction rooted

in   the    belief       that    "legislatures            should       not    bind     future

legislatures        from    employing         their       sovereign       powers      in    the

absence     of    the    clearest       of    intent       to    create      vested    rights

protected under the Contract Clause . . . ."                            Id. ("'[N]either

the right of taxation, nor any other power of sovereignty, will

be held . . . to have been surrendered, unless such surrender

has been expressed in terms too plain to be mistaken.'" Id.

(quoting United States v. Winstar Corp., 518 U.S. 839, 874-75

(1996)).         "The    requirement         that    'the      government's        obligation
unmistakably appear thus served the dual purposes of limiting

contractual       incursions     on     a     State's       sovereign     powers      and    of

avoiding difficult constitutional questions about the extent of

State authority to limit the subsequent exercise of legislative

power.'"     Id. (quoting Winstar, 518 U.S. at 875).

     ¶140 Hence, in this case, we must consider whether Chapter

36 of the Milwaukee Charter Ordinance evinces a clear intent by




                                              78
                                                                                   No.     2012AP2067



the    City       of     Milwaukee         Common     Council       ("Common    Council")47           to

create           contractual             rights       against        the     modification             of

contribution payments to the Milwaukee ERS.

       ¶141 Wisconsin precedent has held that public pension plans

may create constitutionally protected contractual rights between

the    State          and     public       employees        that    are    protected        by    the

Wisconsin Constitution.                      See State ex rel. Cannon v. Moran, 111

Wis.    2d       544,        554,    331     N.W.2d       369   (1983)     (holding       that    the

plaintiffs, as plan members of the Milwaukee County Employees'

Retirement System, had a constitutionally protected contract).

       ¶142 As          this        court     has     noted,     however,      when       examining

whether           a     legislative            enactment           creates     a        contractual

relationship,                it     is     imperative       to      determine          whether    the

legislature intended to "create private contractual or vested

rights" or "merely to declare[] a policy to be pursued . . . ."

Morrison v. Bd. of Educ. of City of West Allis, 237 Wis. 483,

487, 297 N.W. 383 (1941).                         For a legislative enactment to be

considered a contract, "the language and circumstances [must]
evince       a    legislative            intent      to    create     private      rights        of   a

contractual nature enforceable against the State."                                      Lightbourn,

243 Wis. 2d 512, ¶145 n.188 (quoting U.S. Trust, 431 U.S. at 17

n.14).                This        requires     us,     when        reviewing       a     particular


       47
         The Common Council exercises all policymaking and
legislative powers for the City of Milwaukee, including the
adoption of ordinances and resolutions and the approval of the
city's annual budget.    See City of Milwaukee, Common Council
Members, http://city.milwaukee.gov/CommonCouncil/Council-Member-
Web-Pages.htm#.U8xI3M0_1kg (last visited July 20, 2014).

                                                     79
                                                                      No.        2012AP2067



legislative      enactment,     to     suspend       judgment        and     "'proceed

cautiously both in identifying a contract within the language of

a   regulatory    statute     and    in    defining    the    contours            of   any

contractual     obligation.'"        Parker,   123     F.3d     at    7-8        (quoting

Atchison, 470 U.S. at 466).

      ¶143 We    begin   with   the       language    of   Chapter          36    of   the

Milwaukee Charter Ordinance.48             The parties' arguments rely on

the following ordinance subsections from Chapter 36:

      § 36–08–7–a–1: [T]he city shall contribute on behalf
      of general city employes 5.5% of such member's
      earnable compensation.

      § 36–13–2–a: Every such member . . . shall thereby
      have a benefit contract in . . . . all . . . benefits
      in the amounts and upon the terms and conditions and
      in   all  other   respects  as   provided  under  this
      [ordinance] . . . and each member and beneficiary
      having such a benefit contract shall have a vested
      right to such . . . benefits and they shall not be
      diminished or impaired by subsequent legislation or by
      any other means without his consent.

      § 36–13–2–c: Every person who shall become a member of
      this retirement system . . . shall have a similar
      benefit contract and vested right in . . . all . . .
      benefits in the amounts and on the terms and
      conditions and in all other respects as . . . in

      48
       "The rules for the construction of statutes and municipal
ordinances are the same." Cnty. of Columbia v. Bylewski, 94
Wis. 2d 153, 169 n.7, 288 N.W.2d 129 (1980). Therefore, if the
"plain meaning of the [ordinance] is clear, a court . . . should
simply apply the clear meaning of the [ordinance] to the facts
before it." Bruno v. Milwaukee Cnty., 2003 WI 28, ¶7, 260 Wis.
2d 633, 660 N.W.2d 656 (quoting UFE Inc. v. LIRC, 201 Wis. 2d
274, 281-82, 548 N.W.2d 57 (1996)).




                                          80
                                                                   No.    2012AP2067


    effect at the           date   of     the    commencement       of    his
    membership.

    § 36–13–2–d: Contributions which are made to this fund
    . . . by the city . . . as contributions for members
    of this system shall not in any manner whatsoever
    affect, alter or impair any member's rights, benefits,
    or allowances, to which such member under this
    [ordinance] is or may be entitled. . . .

    § 36–13–2–g: Every member, retired member, survivor
    and beneficiary who participates in the combined fund
    shall have a vested and contractual right to the
    benefits in the amount and on the terms and conditions
    as provided in the law on the date the combined fund
    is created.
    ¶144 Turning to the language of Chapter 36, we find it

unquestionably     creates     contractual        rights     in     the    pension

benefits   of   Milwaukee    ERS   plan      members.49    Two    subsections    of

Chapter 36 are particularly germane in reaching this conclusion.

First, § 36–13–2–g provides:

    Every member, retired member, survivor and beneficiary
    who participates in the combined fund shall have a
    vested and contractual right to the benefits in the
    amount and on the terms and conditions as provided in
    the law on the date the combined fund is created.
(Emphasis added.)      Further, § 36–13–2–a provides, in relevant
part:

    Every such member . . . shall thereby have a benefit
    contract in . . . all . . . benefits in the amounts
    and upon the terms and conditions and in all other
    respects as provided under this [ordinance] . . . and
    each member and beneficiary having such a benefit
    contract shall have a vested right to such . . .
    benefits and they shall not be diminished or impaired

    49
       The question of when or to what extent pension benefits
vest for plan members under the Milwaukee ERS is not before us
and, accordingly, we do not address the issue.

                                        81
                                                                    No.      2012AP2067


     by subsequent legislation               or   by    any    other      means
     without his consent.
(Emphasis added.)

     ¶145 Sections 36-13-2-g and 36-13-2-a unmistakably evince

the clear intention of the Common Council to create a "vested

and contractual right to the [pension] benefits in the amount

and on the terms and conditions" as provided in Chapter 36.

§ 36-13-2-g.

     ¶146 However,     this    still     leaves        unresolved      the    central

issue before us: whether "contributions" to the Milwaukee ERS

fit within the "benefits" for which plan members have a "vested

and contractual right." § 36-13-2-g.

     ¶147 The    defendants     contend       that     § 36-13-2-g,       which     the

plaintiffs     cite   as   creating     a     "contractual      right"        to    the

contributions paid by the City of Milwaukee, can create no such

contractual    obligation     because    the      subsection    does      not      refer

explicitly to "contributions."50             Further, the defendants argue §

36-13-2-d demonstrates that, as the terms are used in Chapter

36, contributions to the Milwaukee ERS are not "benefits" or
"terms and conditions."

     ¶148 The plaintiffs disagree with the defendants' reading

of Chapter 36 and note that the title of § 36-13-2 is "Contracts

to Assure Benefits," and that the subsection guarantees that

     50
       The defendants also reference a different ordinance
subsection (§ 16-32-2-c) with nearly identical language as § 32-
13-2-g in its briefing, but as the court of appeals observes in
its certification, neither party suggests an independent
analysis of the other subsection would affect the outcome in
this case.

                                        82
                                                                        No.    2012AP2067



every member shall have a benefit contract and vested right

concerning       "[t]he      annuities     and    all    other    benefits      in     the

amounts    and    upon       the   terms   and    conditions     and    in    all     other

respects    as    provided         under   this    act     [which]     shall    not     be

diminished or impaired by any subsequent legislation or by any

other means."        § 36–13–2–a.           The plaintiffs contend that the

words "upon the terms and conditions and in all other respects

as provided under this act," incorporate § 36-08-7a-1, which

provides that the City of Milwaukee will contribute 5.5% of its

employees' earnable compensation to the Milwaukee ERS.

    ¶149 The        parties        agree    that     Chapter     36     unambiguously

requires plan members of the Milwaukee ERS to "contribute or

have contributed on their behalf, 5.5% of the member's earnable

compensation."           §    36-08-7a-1.          Since    1970,      and    until    the

enactment of Act 10, the City of Milwaukee, pursuant to § 36-08-

7-a-1, has paid the employees' contribution share:

    Members who are not firemen, policemen or elected
    officials shall contribute or have contributed on
    their   behalf,   5.5%   of   the  member's   earnable
    compensation. Except as provided in subds. 2 and 3,
    subsequent to and commencing with the first pay period
    of 1970, the city shall contribute on behalf of
    general city employes 5.5% of such member's earnable
    compensation.   Members  employed  by   city  agencies
    participating in the system shall contribute 5.5% of
    their earnable compensation less any contribution made
    on their behalf as determined by the governing bodies
    of such agencies.
The plaintiffs argue that the contributions referred to in this

subsection are a "benefit," and accordingly, pursuant to § 36-
13-2-g and § 36-13-2-a, plan members have a contractually vested


                                            83
                                                                          No.   2012AP2067



right in the contributions paid by the City of Milwaukee on

behalf of all participating plan members.

       ¶150 Upon a close reading of the language of Chapter 36,

however, we find nothing to suggest that the City of Milwaukee

intended      to    classify     contribution         rates    as     a   contractually

protected "benefit."             Consequently, there is no indication the

Common Council, and by extension the State, bound itself to

never modifying the contribution rates that fund the Milwaukee

ERS.

       ¶151 Two sources in particular inform our analysis.                              In

§ 36-13-2-d,         an     evident      distinction           is      drawn      between

"contributions"           used   to   fund      the    Milwaukee          ERS   and    the

"benefits"         conferred     to   plan     members.             Section     36-13-2-d

provides, in part:

       Contributions which are made to [the Milwaukee ERS]
       . . . by the city . . . as contributions for members
       of this system shall not in any manner whatsoever
       affect, alter or impair any member's rights, benefits,
       or allowances, to which such member under this
       [ordinance] is or may be entitled . . . .
(Emphasis added).           This subsection unquestionably distinguishes

between the "contributions" paid by the City of Milwaukee and

the contractually protected "benefits" of the plan members.                            Our

rules    of    interpretation         dictate     that    Chapter         36    must   "be

construed in a manner that no word is rendered surplusage and

every word is given effect."                   Cnty. of Adams v. Romeo, 191

Wis. 2d 379, 387, 528 N.W.2d 418 (1995).                      Under § 36-13-2-d, it

is impossible for contributions to be construed as a benefit.
The plaintiffs' argument is premised on the notion that the

                                          84
                                                    No.   2012AP2067



contributions paid by the City of Milwaukee impact the benefits

of plan members.   Section 36-13-2-d unequivocally refutes that

contention.

    ¶152 Section 36-05 further belies the plaintiffs' argument

that "contributions" are a "benefit" under Chapter 36.     Section

36-05, titled "Benefits," defines the pension, disability, and

death benefits offered under the Milwaukee ERS.51    This section

outlines in detail the scope of the word "benefits" as it is

used in the Charter, listing every benefit of the plan and the

terms and conditions related to those benefits.      The City of




    51
          Section 36-05 addresses a wide range of benefits and
allowances.   As an illustration of the breadth of § 36-05, the
benefits and allowances covered in this section include: service
retirement (§ 36-05-1), ordinary disability retirement (§ 36-05-
2), duty disability retirement (§ 36-05-3), accidental death
benefits (§ 36-05-5), separation benefits (§ 36-05-6), optional
benefits (§ 36-05-7), survivorship benefits (§ 36-05-8),
ordinary death benefits (§ 36-05-10), and a lump sum bonus
provision (§ 36-05-11).   Each of these enumerated benefits and
allowances contains specific information as to the nature of the
benefit, the eligibility requirements, how the benefit is
calculated, whether the benefit may be transferred or assigned
and to whom it may be transferred or assigned, how the benefit
is affected by cost of living adjustments, and numerous other
terms and conditions.

                               85
                                                                       No.    2012AP2067



Milwaukee's self-imposed obligation to pay the employee share of

contributions is conspicuously absent from this section.52

     ¶153 In sum, no unmistakable indicia exists in Chapter 36

that contributions paid by the city are a defined "benefit" that

is forever impervious to alteration.

     ¶154 As       a    defined        benefit   plan,     the     Milwaukee        ERS

calculates benefits based on years of service multiplied by a

fixed percentage of base salary.                 See Milwaukee, Wis. Charter

Ordinance    ch.       36.       The   plaintiffs      argue     that    Wis.    Stat.

§ 62.623, by requiring plan members to contribute 5.5% of their

earnable    compensation,          diminishes    the     value    of    the     benefit

without    providing         a   commensurate    gain.      So,    the       plaintiffs

contend, the defendants' position that contributions are not a

"term and condition" effectively excludes the cost of the plan

to the employee as a "term and condition" under Chapter 36,

which is an absurd result.


     52
       The dissent takes issue with our interpretation of the
term   "benefit"   under   the   Milwaukee  Charter   Ordinance.
Specifically, the dissent points to three subsections of § 36-05
that incorporate § 36-08-7 and argues that, based on these
statutory cross-references and how "fringe benefits" have been
described in select judicial opinions, "contributions" must be a
contractually-vested "benefit" under the Milwaukee ERS.      The
dissent's argument is confused by the reach of our holding and
fails to point to any flaw in our analysis. This case does not
require us to address whether accumulated contributions are
contractually-vested "benefits" under the Milwaukee Charter
Ordinance.    Instead, our review is limited to determining
whether the term "contributions"——that is, the requirement to
contribute a certain percentage of earnable compensation into
the Milwaukee ERS——constitute a "benefit" under the Ordinance
Charter.

                                          86
                                                                   No.    2012AP2067



      ¶155     The    plaintiffs'       argument       conflates    the    accrued

benefits of plan members, which Wis. Stat. § 62.623 does not

affect, and the funding provisions of Chapter 36, which are not

considered a "benefit" under the Charter.                    Nothing in Act 10

purports to reduce, impair, or affect in any way benefits that

have already accrued to plan members.                 Wisconsin Stat. § 62.623

modifies only the method by which the Milwaukee ERS is funded;

the pension, disability, and death benefits that accrue to plan

members, pursuant to the terms and conditions in § 36-05, remain

unaffected.

      ¶156 The plaintiffs' contention that Wis. Stat.                     § 62.623

diminishes accrued "benefits" because it is more costly for plan

members   misses      the    point.      It    is    certainly    true    that    the

Milwaukee ERS calculates the benefits for a plan member based on

years of service multiplied by a fixed percentage of their base

salary.      To be clear, however, Wis. Stat. § 62.623 does not

modify this benefit.         It does not modify the base salary of the

plan member, the amount of benefits received under the plan, or
the plan's overall cost.              Rather, Wis. Stat. § 62.623 changes

only the allocation of those costs——that is, the contribution

requirements     shared      by   the   City    of    Milwaukee    and    the    plan

member.      We are not overlooking——nor are we unsympathetic to——

the   fact    that    Wis.    Stat.     § 62.623      increases    the    cost     of

participating in the Milwaukee ERS for general employees.                        This

increased cost, however, does not constitute a Contract Clause

violation.      The    plaintiffs       may    have    to   contribute     more    to
receive the same benefit, but "the fact that a state makes a
                                         87
                                                                         No.     2012AP2067



contract more costly to one of the parties does not establish a

[Contract Clause] violation."               Chrysler Corp. v. Kolosso Auto

Sales, Inc., 148 F.3d 892, 894 (7th Cir. 1998).

       ¶157 Our decision is dictated by the plain language in the

Milwaukee Charter Ordinance.              Nothing in the Charter evidences

that   the   legislature        unmistakably     intended      to       create    binding

contract rights in the contribution rates established in § 36-

08-7-a-1.     Further,      even    if     it    were       unclear       whether      the

legislature      intended       "contributions"        to    be     a    contractually

vested "benefit," the very strong presumption employed against

state laws creating contractual rights would still defeat the

plaintiffs' claim.

       ¶158 We   need     not    reach     the   question         of    impairment      or

substantiality because the plaintiffs have failed to demonstrate

that the allocation of contribution rates in the Milwaukee ERS

is a contractual "benefit" protected by the Contract Clause.                            We

conclude     that   the    City    of     Milwaukee     was       not    contractually

obligated to pay the employee share of contributions into the
Milwaukee ERS.       Therefore, we hold that the plaintiffs failed to

establish beyond a reasonable doubt that Wis. Stat. § 62.623

violates the Contract Clause of the Wisconsin Constitution.

                                    IV.    CONCLUSION

       ¶159 We hold the following:

       ¶160 First,    we    hold    that       the   plaintiffs'         associational

rights argument is without merit.                    We reject the plaintiffs'

argument that several provisions of Act 10, which delineate the
rights, obligations, and procedures of collective bargaining,
                                          88
                                                                                        No.    2012AP2067



somehow infringe upon general employees' constitutional right to

freedom of association.                       No matter the limitations or "burdens"

a    legislative            enactment          places         on    the   collective          bargaining

process, collective bargaining remains a creation of legislative

grace and not constitutional obligation.                                       The First Amendment

cannot         be    used       as    a   vehicle        to    expand      the    parameters          of    a

benefit         that       it    does       not    itself          protect.           Accordingly,         we

conclude        that        Wis.      Stat.       §§     111.70(4)(mb),          66.0506,       118.245,

111.70(1)(f), 111.70(3g), 111.70(4)(d)3 and the third sentence

of    §    111.70(2)            do    not     violate         the   plaintiffs'         associational

rights.

           ¶161 Second, we reject the plaintiffs' equal protection

claim      under       a    rational          basis      standard         of    review.        We    apply

rational            basis    review         to     the    plaintiffs'           argument       that      the

collective bargaining framework established by Act 10 violates

the constitutional rights of general employees through disparate

treatment of those who choose to collectively bargain and those

who       do        not.             Finding       the        plaintiffs'         argument          to     be
unconvincing,              we    hold       Act    10     survives        the    plaintiffs'         equal

protection challenge under rational basis review.

          ¶162 Third,           we     hold      the     plaintiffs'           home    rule    amendment

argument fails because Wis. Stat. § 62.623 primarily concerns a

matter of statewide concern.                              Accordingly, we hold that Wis.

Stat. § 62.623 does not violate the home rule amendment.

          ¶163 Finally, we hold that the plaintiffs' Contract Clause

claim      fails.            The       City       of    Milwaukee         was    not    contractually
obligated to pay the employee share of contributions                                                to the
                                                         89
                                                  No.   2012AP2067



Milwaukee ERS.   Further, even if the contributions paid by the

City were a contractual right, we hold the contract was not

substantially impaired by Wis. Stat. § 62.623.    Therefore, we

hold that the plaintiffs failed to establish beyond a reasonable

doubt that Wis. Stat. § 62.623 violates the Contract Clause of

the Wisconsin Constitution.

    ¶164 Therefore, we uphold Act 10 in its entirety.

    By the Court.—The decision and order of the circuit court

is reversed.




                               90
                                                            No. 2012AP2067.npc




       ¶165 N. PATRICK CROOKS, J.           (concurring).        As a justice of

the Supreme Court of Wisconsin, I join the majority of this

Court in voting to uphold the constitutionality of Act 10.                       In

answering the legal questions put to us as we must, we affirm a

legislative act that appears to have gone further than needed.

For many public workers, Act 10 effectively ended meaningful

union representation carried out through statutory                    collective
bargaining.       This type of statutory collective bargaining has

long been part of Wisconsin's progressive heritage.

       ¶166 It is my firm belief that individuals should have the

right to organize and bargain collectively regarding their wages

and the terms of their employment.                  As thoughtful people from

across the political spectrum and around the world have long

recognized,     collective     bargaining      benefits    workers,      employers

and society itself.      Although Act 10 does not violate either the

United   States    Constitution    or    the    Wisconsin      Constitution,     it

erodes    longstanding    benefits      both    to    public   workers     and   to

public employers.     I write separately to make clear what my vote

in this case means and to emphasize the importance of policies

that     give   rights    to     workers       to     organize     and    bargain

collectively.

                         I.    THE LEGAL FRAMEWORK

       ¶167 The legal questions in this case can be answered in no

other way than the majority answers them.                 Because the affected
workers retain "a right to associate for the purpose of engaging

                                        1
                                                                  No. 2012AP2067.npc



in those activities protected by the First Amendment,"1 Act 10

violates neither their constitutional right of association nor

their right to        equal protection.2               The collective bargaining

rights at issue here are statutory, not constitutional rights.

      ¶168 As    I   stated   in   League         of   Women    Voters      v.    Walker,

another case in which plaintiffs made a purely facial challenge

to   the   constitutionality       of   a       statute,    the    limited       question

presented and the legal framework prescribed for answering it
demand significant restraint on the part of this court:


      With this type of facial challenge, the odds are
      against the plaintiffs at every turn.      A court is
      bound to recognize the presumption that the statute is
      constitutional.    Here, the plaintiffs must prove
      otherwise beyond a reasonable doubt.    In considering
      such a challenge, a court must resolve any doubt about
      the constitutionality of a statute in favor of
      upholding the statute.

      In short, the question before us in this case is not
      whether the [challenged statute] is good policy, not
      whether it accomplishes what it sets out to do, and
      not whether it is unfair under some circumstances to
      some individuals. The question before us in this case
      is solely this: starting with a presumption of
      constitutionality in its favor, are we persuaded
      beyond a reasonable doubt that the statute violates
      the Wisconsin Constitution in every circumstance?
       . . .

      1
       Roberts       v.   United   States        Jaycees,      468   U.S.    609,     618
(1984).
      2
       Majority op., ¶75 (recognizing that the equal protection
argument hinges on the merit of the associational rights claim);
see also majority op., ¶24 ("Whether the plaintiffs' First
Amendment challenge to these provisions has any merit is the
lynchpin of this appeal.").

                                            2
                                                             No. 2012AP2067.npc



      The question here is not whether the [statute] is good
      policy, but whether the plaintiffs have proved beyond
      a reasonable doubt that the [statute] violates the
      Wisconsin Constitution on any of the grounds claimed
      by these plaintiffs. Given the framework within which
      the question must be answered, I agree with the
      holding of the majority that the plaintiffs have not
      shown beyond a reasonable doubt that the statute is
      unconstitutional, and I join that holding and the
      mandate.   I can reach no other conclusion than to
      uphold [the statute] based on the purely facial
      challenge here. I therefore respectfully concur.
League of Women Voters v. Walker, 2014 WI 97, ¶¶62-63, 68, ___

Wis. 2d ___, ___ N.W.2d ___ (Crooks, J., concurring) (internal

citations and quotations omitted).

      ¶169 As was true in that case, the analysis required here

is straightforward.          Under the proper application of the correct

legal standard and the relevant precedent, this is not a close

call.   Therefore the plaintiffs' challenge must fail.


        II.      HISTORICAL RECOGNITION OF COLLECTIVE BARGAINING
                          AND ITS VALUE TO SOCIETY
      ¶170 The value and necessity of collective bargaining and

the   fair       treatment   of    workers    have   been   recognized   by   many

thoughtful people.           As we considered this case, I recalled the

eloquence of Rerum Novarum, the 1891 encyclical of Pope Leo XIII

that seriously discussed the questions of resolving conflicts

between employers and employees fairly and justly.                  Though more

than 120 years have passed since his writing, the encyclical

retains      a    remarkable      relevance   with   its    thoughtful   comments
about workers, employers, unions and "free agreements" reached

about wages, hours and conditions of employment.
                                          3
                                                          No. 2012AP2067.npc



      ¶171 This lengthy document acknowledges the delicate task

it   undertakes,   takes   care   to       avoid    extremist    language   and

specifically   rejects     socialism       as   a   solution    to   legitimate

concerns of unjust working conditions.                Instead, it adopts a

respectful tone, recognizing the necessity of free enterprise to

society, the value of work and the contributions of workers to

their societies:

      Now, for the provision of such commodities, the labor
      of the working class——the exercise of their skill, and
      the employment of their strength, in the cultivation
      of the land, and in the workshops of trade——is
      especially responsible and quite indispensable. . . .
      Justice, therefore, demands that the interests of the
      working classes should be carefully watched over by
      the administration, so that they who contribute so
      largely to the advantage of the community may
      themselves   share   in   the   benefits  which   they
      create . . . .   It follows that whatever shall appear
      to prove conducive to the well-being of those who work
      should obtain favorable consideration.3
      ¶172 From such philosophical foundations, the writing turns

to practical considerations:

      Let the working man and the employer make free
      agreements, and in particular let them agree freely as
      to the wages . . . . In these and similar questions
      however——such as, for example, the hours of labor in
      different trades, the sanitary precautions to be
      observed in factories and workshops, etc.——in order to
      supersede undue interference on the part of the State,
      especially as circumstances, times, and localities
      differ so widely, it is advisable that recourse be had

      3
       Leo XIII, Rerum Novarum: Encyclical of Pope Leo XIII on
Capital and Labor (1891), in Leo XIII, Rerum Novarum, at ¶34
(Catholic      Truth      Soc'y     2002),      available      at
http://www.vatican.va/holy_father/leo_xiii/encyclicals/documents
/hf_l-xiii_enc_15051891_rerum-novarum_en.html.

                                       4
                                                              No. 2012AP2067.npc


      to societies or boards such as We shall mention
      presently, or to some other mode of safeguarding the
      interests of the wage-earners; the State being
      appealed to, should circumstances require, for its
      sanction and protection. . . .

      The most important of all [such associations designed
      to aid workers] are workingmen's unions, for these
      virtually include all the rest. History attests what
      excellent   results   were   brought   about   by   the
      artificers' guilds of olden times. . . . Such unions
      should be suited to the requirements of this our age——
      an age of wider education, of different habits, and of
      far more numerous requirements in daily life. . . .

      [T]o enter into a "society" of this kind is the
      natural right of man; and the State has for its office
      to protect natural rights, not to destroy them; and,
      if it forbids its citizens to form associations, it
      contradicts the very principle of its own existence,
      for both they and it exist in virtue of the like
      principle, namely, the natural tendency of man to
      dwell in society.4
      ¶173 After        setting    out         this   template       for    mutually

respectful     relationships       between        employer     and    worker,      and

explicitly endorsing the value of protective organizations such

as   "workingmen's      unions,"    Pope        Leo   XIII   goes    on    to   state,
"[E]very precaution should be taken not to violate the rights of

individuals     and   not   to    impose       unreasonable   regulations        under

pretense of public benefit."5

      ¶174 The encyclical concludes,

      We may lay it down as a general and lasting law that
      working men's associations should be so organized and
      governed as to furnish the best and most suitable
      means for attaining what is aimed at, that is to say,

      4
          Id. at ¶¶45, 49 and 51.
      5
          Id. at ¶52.

                                           5
                                                                    No. 2012AP2067.npc


     for helping each individual member to better his
     condition to the utmost in body, soul and property.6
     ¶175 This     recognition          of    the    critical       importance   of    a

worker's right to collective bargaining was also central to the

political    philosophy      of    one       of   the   most    influential      public

figures in Wisconsin history, United States Senator Robert M.

La Follette.      Identifying the forces arrayed against the working

person in the early twentieth century, La Follette stated at the

outset of the 1912 presidential primaries, in which he was a

candidate, "I demand protection of wage-earners and farmers in

their right to organize and to defend themselves by means of

unions.    All other issues are subordinate to this great issue."7

     ¶176 Interestingly,               Ronald       Reagan,     a      United    States

President some would consider to be from the other end of the

political spectrum, expressed similar convictions.                       In 1980, the

year he was elected, Reagan gave an impassioned Labor Day speech

in which he pledged that "American workers will once again be

heeded"     and   promised        to     "consult       with   representatives        of

organized labor on those matters concerning the welfare of the

working people of this nation."8

     6
         Id. at ¶57.
     7
       Robert M. La Follette, The Republican Party Faces a Crisis
(1912), reprinted in The Political Philosophy of Robert M.
La Follette As Revealed in His Speeches and Writings 408 (Ellen
Torelle, ed., 1920).
     8
       Ronald Reagan, Labor Day Speech at Liberty State Park,
Jersey City, New Jersey (Sept. 1, 1980),            available  at
www.reagan.utexas.edu/archives/reference/9.1.80.html        (last
visited May 29, 2014).

                                             6
                                                       No. 2012AP2067.npc



    ¶177 He noted his own union affiliation and experiences:

    I happen to be the only president of a union ever to
    be a candidate for President of the United States. As
    president of my union——the Screen Actors Guild——I
    spent many hours with the late George Meany,9 whose
    love of country and whose belief in a strong defense
    against all totalitarians is one of labor's greatest
    legacies.   One year ago today on Labor Day George
    Meany told the American people:

         As American workers and their families return from
         their   summer    vacations  they   face   growing
         unemployment and inflation, a climate of economic
         anxiety and uncertainty.

    Well I pledge    to you in his memory that the voice of
    the American     worker will once again be heeded in
    Washington and    that the climate of fear that he spoke
    of   will   no    longer   threaten  workers  and  their
    families.10
    ¶178 Reagan   went   on   to   focus   on   the   role   of   unions   in

bringing about a dramatic transformation of communist Poland:

    These are the values inspiring those brave workers in
    Poland.     The  values   that  have   inspired  other
    dissidents under Communist domination. They remind us
    that where free unions and collective bargaining are
    forbidden, freedom is lost. . . .    Today the workers
    in Poland are showing a new generation not how high is
    the price of freedom but how much it is worth that
    price.11


    9
       George Meany was president of the AFL-CIO from 1955 to
1979. See Owen Ullman, George Meany, Labor's "Giant" Is Dead at
85, Nashua Telegraph, January 11, 1980, at 6.
    10
       Ronald Reagan, Labor Day Speech at Liberty State Park,
Jersey City, New Jersey (Sept. 1, 1980),            available  at
www.reagan.utexas.edu/archives/reference/9.1.80.html        (last
visited May 29, 2014).
    11
         Id.

                                    7
                                                       No. 2012AP2067.npc


                           III. CONCLUSION

    ¶179 It is my view that the Wisconsin Legislature and

Governor could have chosen a different way to accomplish a

goal of cost savings that would have left intact meaningful

union     representation     carried       out   through   statutory

collective bargaining for public employees.           It is also my

view that the damage to public employee unions due to Act

10 was unnecessary.        It is a departure from Wisconsin's

strong tradition.

    ¶180 Act 10 embodies policy determinations, and such

questions are not properly addressed to the members of the

Supreme Court of Wisconsin.       Such policy questions are for

the Wisconsin Legislature and Governor, and their judgment

on such policy matters is for the people of Wisconsin to

evaluate.     I respect the boundaries the judicial branch

must observe and recognize that we cannot substitute our

judgment on questions of policy for that of the Wisconsin

Legislature and Governor.12         Accordingly, I respectfully

concur.




    12
       "Our duty . . . requires that we uphold the separation of
powers by not substituting judicial policy views for the views
of the legislature or rule making authority."     State ex rel.
Griffin v. Smith, 2004 WI 36, ¶19, 270 Wis. 2d 235, 677 N.W.2d
259.

                                       8
                                                              No.    2012AP2067.awb




    ¶181 ANN WALSH BRADLEY, J.               (dissenting).      In reflecting

on the importance of an independent judiciary as a separate

branch of government, former United States Supreme Court Chief

Justice   William    Rehnquist      called     the   authority       to   declare

unconstitutional a law passed by legislature "probably the most

significant single contribution the United States has made to

the art of government."

    I believe that the creation of an independent
    constitutional court, with the authority to declare
    unconstitutional laws passed by the state or federal
    legislatures, is probably the most significant single
    contribution the United States has made to the art of
    government.1
    ¶182 He emphasized the important role that courts serve in

protecting the rights guaranteed under the Constitution. Courts

serve as guardians of the constitutional rights of all people.

Our challenge as a court is to duly respect the prerogatives of

the legislature as reflected in its legislative acts, while at

the same time honoring our significant role.             We must constantly

guard against proper judicial restraint being transformed into

improper judicial acquiescence.

    ¶183 In   this      case   we   are    presented   with     constitutional

challenges   to   Act   10.      The   majority      aptly    sets     forth   its

    1
       Chief Justice William Rehnquist, Remarks at the Symposium
on Judicial Independence, University of Richmond T. C. Williams
School of Law (Mar. 21, 2003) (on file with the Public
Information   Office,   U.S.   Supreme   Court),   available   at
www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filen
ame=sp_03-21-03.html.



                                       1
                                                                        No.    2012AP2067.awb


results.         However, it is difficult to find in the majority's

lengthy opinion a discussion of the actual arguments and issues

presented by the parties.

      ¶184 An actual issue presented by Madison Teachers is: Does

Act 10 infringe on the associational rights of public employees

to organize?2

      ¶185 Yet         the    majority      reframes    the    issue          to   determine

whether there is a constitutional right to collective bargaining

and   whether         the    State    has   an    obligation       to     promote     First

Amendment rights.

      ¶186 An actual issue presented by the parties is: Does the

provision        in     Act     10    prohibiting       Milwaukee             from    making

contributions to its employees' pension plans violate the Home

Rule Amendment?

      ¶187 Rather than focusing on the provision at issue, the

majority shifts the focus to the purpose behind Act 10 as a

whole.     It determines that because Act 10 deals generally with

financial        matters,      the     prohibition      on     Milwaukee's           pension
contributions is a matter of statewide concern.

      ¶188 An actual issue presented by the parties is: Does the

prohibition on pension contributions violate the Contract Clause

given     that    benefits      are    guaranteed      by    the   Milwaukee         Charter

Ordinance?




      2
       For purposes of this dissent I use "Madison Teachers" to
refer to the plaintiffs collectively.

                                              2
                                                                      No.       2012AP2067.awb


       ¶189 By       twisting     the    definition         of    benefits      to   exclude

pension        contributions,          the     majority          thereby        avoids     any

substantive analysis of the Contract Clause.

       ¶190 The result of the majority's dodge is the needless

diminution of multiple constitutional rights:



              The right of freedom of association to organize is

               diluted as the majority has opened the door for the

               State     to    withhold       benefits      and    punish       individuals

               based on their membership in disfavored groups.



              Municipalities' right to self-govern as granted by the

               Home     Rule     Amendment      rings      hollow    as     the      majority

               determines        that        when    the     State        has      budgetary

               difficulties, matters dealing with local finances are

               now     matters    of    statewide         concern,    even      absent     any

               showing of an impact on the State budget.


              And     the     right    to    contract       is    undermined        as    the

               majority       demonstrates         its    willingness      to     creatively

               interpret a contract in a manner permitting the State

               to disregard it.



       ¶191 I determine that the majority's failure to address the

actual        issues    presented       allows       it     to    substitute         analyses

resulting in conclusions that countenance the violation rather
than     the    protection        of    constitutional           rights.         Because    I

                                               3
                                                                      No.    2012AP2067.awb


determine that Act 10 unconstitutionally infringes on protected

rights, I respectfully dissent.

      ¶192 There are three main issues raised by the parties: (I)

the Right To Associate; (II) the Home Rule Amendment; and (III)

the Contract Clause.          I address each in turn.

                          I. The Right To Associate

      ¶193 Madison       Teachers      asserts     that    Act    10        violates     the

First Amendment right of freedom of association by infringing on

its right to organize.3          Given that the State has conceded that

the   challenged      provisions      in    Act   10   cannot         survive     such    a

constitutional challenge if a strict scrutiny review is applied,

the   majority    has    to   avoid    strict     scrutiny       to    arrive     at     its

result.4     How does it do that?               It jettisons the focus of its

analysis.

      ¶194 Rather than addressing plaintiff's issue that Act 10

infringes    on    its    constitutional          right    to    organize         into     a

collective    bargaining       unit,    the     majority    erroneously           asserts




      3
       The    First     Amendment      of   the   United     States         Constitution
provides:

      Congress shall make no law respecting an establishment
      of religion, or prohibiting the free exercise thereof;
      or abridging the freedom of speech, or of the press;
      or the right of the people peaceably to assemble, and
      to   petition  the   Government  for   a  redress   of
      grievances.
      4
       Under a strict scrutiny review, State action infringing on
First Amendment rights will be upheld only if it is narrowly
tailored to meet a compelling government interest.       Gard v.
State Elections Bd., 156 Wis. 2d 28, 44, 456 N.W.2d 809 (1990).

                                            4
                                                                            No.    2012AP2067.awb


that plaintiff is claiming a right to bargain as a collective

bargaining unit.5           It then determines that no such right exists.

       ¶195 In rejecting Madison Teachers' purported claims, the

majority          stresses         that        "[g]eneral            employees         have      no

constitutional            right     to         negotiate           with    their       municipal

employer."              Majority    op.,        ¶38.          It     further      states       that

"collective bargaining . . . is not constitutionally protected."

Id.,       ¶39.     Accordingly,          it    determines          that   "the    plaintiffs'

associational           rights     are    in     no    way     implicated         by   Act     10's

modifications to Wisconsin's collective bargaining framework."

Id., ¶41.

       ¶196 In one instance, the majority appears to acknowledge

the plaintiff's actual claim but then distorts it.                                The majority

begins the sentence by correctly referencing "the 'right' the

plaintiffs refer to——the right to associate with a certified

representative."           Id., ¶37.           So far, so good.             However, it then

ends the sentence with a distortion of the claim, describing the

right being asserted as a right "to collectively bargain on any
subject."         Id.

       ¶197 The         majority    is     well       aware    that       the   plaintiff       has

never       asserted       that      it        has     a     constitutional            right     to


       5
       The majority spends an inordinate amount of ink attacking
the dissent rather than attacking the actual associational
issue. Normally the role of the majority opinion is to expound
on the arguments of the parties and the law, giving only brief
attention to the comments of the written dissent. It is unclear
if the majority does this in an attempt to deflect attention
from its failure to address the associational right to organize.
Or, if it is because the majority recognizes that the arguments
of the dissent cannot go unaddressed.

                                                 5
                                                                              No.     2012AP2067.awb


collectively bargain, let alone bargain on any subject.                                             In

fact, elsewhere in its opinion, the majority acknowledges that

the plaintiff is not arguing a constitutional right to bargain:

"The plaintiffs have insisted at every stage of litigation in

this    case    that    they       are    not    arguing          a    constitutional           right

exists to collectively bargain."                           Id., ¶39.         Yet the majority

persists in focusing its analysis on the right to bargain.

       ¶198 The plaintiff's actual argument is based on the well-

established      premise       that      there        is    a    constitutional            right     to

organize as a collective bargaining unit.                               In fact, the United

States Supreme Court has declared it to be a fundamental right:

"the    right    of     employees         to    self-organization               and       to   select

representatives of their own choosing for collective bargaining

or    other    mutual    protection            without          restraint      or    coercion        by

their employer . . . is a fundamental right."                                 NLRB v. Jones &

Laughlin Steel Corp., 301 U.S. 1, 33 (1937) (emphasis added).

Likewise, the Court has stated that the First Amendment most

assuredly protects the right of workers to organize: "It cannot
be      seriously         doubted              that         the         First            Amendment[]

guarantees . . . the right [of workers] to gather together for

the    lawful    purpose       of        helping       and       advising          one    another."

Brotherhood      of     R.R.       Trainmen      v.        Virginia,         377    U.S.       1,   5-6

(1964).

       ¶199 As    early       as    1902,       the    Wisconsin         Supreme          Court     has

similarly stressed the "sacredness" of the right of employees to

organize.       State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530,
541,    90     N.W.    1098    (1902).               Against          this    background,           the

                                                 6
                                                                   No.    2012AP2067.awb


majority's failure to squarely address the plaintiff's argument

is remarkable.          In reaching its result the majority appears to

ignore over a century's worth of jurisprudence and undermines a

right long held sacred in our State.6

       ¶200 Madison       Teachers'      argument     that       Act     10     violates

associational       rights    is   twofold.      First,      it    focuses       on   the

provisions in Act 10 requiring collective bargaining units to

hold annual       recertification elections, eliminating fair share

agreements, and prohibiting municipalities from withholding dues

from       employees'    wages.     It    contends        that    these       provisions

violate its associational rights because they infringe on those

rights      by   punishing    association     with    a    collective         bargaining

unit.         Second,    it   argues     that   the       provision       in    Act   10

prohibiting municipalities from bargaining over anything other

than an increase in base wages up to the amount of inflation is

an unconstitutional condition.

       ¶201 Rather than considering whether Act 10 discourages the

exercise of the associational right to organize, the majority

       6
       The majority denies stating that employees do not have a
constitutional right to organize. Majority op., ¶46. However,
its analysis belies this assertion.     Madison Teachers argues
that Act 10 unconstitutionally interferes with associational
rights by burdening and penalizing general employees who elect
to organize in a collective bargaining unit.        Although the
majority acknowledges that at least one of the provisions
burdens labor organizations, id. ¶80, it determines that the
challenged provisions of Act 10 do not burden associational
rights "because in each instance, there is no constitutional
associational right implicated." Id., ¶70. Indeed, it stresses
this point, stating it "is vital and bears repeating: the
plaintiffs' associational rights are in no way implicated by Act
10's    modification  to   Wisconsin's   collective    bargaining
framework." Id., ¶41.

                                          7
                                                                No.   2012AP2067.awb


pivots   to   a   different   issue   advanced      by    the   State     and   then

analyzes that issue.      It advances that the State is not required

to   subsidize      speech,    and    ultimately         concludes      that     the

challenged provisions regarding fair share agreements, paycheck

dues deductions, and annual recertification do not burden the

exercise of associational rights.          Majority op., ¶¶54, 59, 61.7

     ¶202 By pivoting to the issue of whether the constitution

requires the State to subsidize speech, the majority avoids the

actual   argument     advanced   before    this     court:      whether    Act   10

infringes on the associational right to organize by discouraging

membership in a collective bargaining unit.                 Given the void in

the majority's analysis, I turn to address the actual issue.

     ¶203 The First Amendment protects not just against State

prohibition of association, but also against State punishment or

penalty for the exercise of associational rights.                     See Smith v.

Arkansas State Highway Emps., Local 1315, 441 U.S. 463, 464

(1979)   ("The    government     is   prohibited     from       infringing      upon

[First   Amendment]    guarantees     either   by    a    general      prohibition
against certain forms of advocacy, or by imposing sanctions for


     7
       The majority relies heavily on Wis. Educ. Ass'n Council v.
Walker, 705 F.3d 640 (7th Cir. 2013), for its position.
Majority op., ¶68.      However, that case is distinguishable
because it considered a different issue than is presented here.
Wis. Edu. Ass'n Council examined whether Act 10 burdened the
free speech rights of collective bargaining units. 705 F.3d at
645-53.   The petitioners asserted that the prohibition on dues
deductions constituted viewpoint discrimination because it was
imposed only on those collective bargaining units that did not
endorse Governor Walker in the prior election.     The court did
not consider whether Act 10 burdened the right of individuals to
organize in a collective bargaining unit.

                                       8
                                                                             No.      2012AP2067.awb


the expression of particular views it opposes."); Baird v. State

Bar   of    Ariz.,      401   U.S.     1,     6       (1971)   ("The        First      Amendment's

protection        of     association          prohibits         a      State          from    . . .

punishing        [a    person]       solely       because       he     is    a     member     of    a

particular political organization or because he holds certain

beliefs.").           In other words, the State cannot "tak[e] steps to

prohibit or discourage union membership or association."                                      Smith,

441 U.S. at 466 (emphasis added).

      ¶204 The         United    States           Supreme      Court        illustrated        this

principle in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

(1958).          Patterson      involved          a    State    requirement            that   NAACP

reveal its membership list.                 The court determined that the State

action was "likely to affect adversely the ability of petitioner

and its members to pursue their collective effort[s] [by] . . .

induc[ing]        members       to     withdraw          from        the     Association          and

dissuad[ing] others from joining it."                            Id. at 462-63.                Thus,

because the requirement that NAACP reveal its membership list

was not supported by a compelling government interest, the court
determined that it was unconstitutional.                         Id. at 466.

      ¶205 Similarly,            the    provisions             in      Act       10      discourage

organizing as a collective bargaining unit by increasing its

cost.        Wisconsin        Stat.      § 111.70(4)(d)               requires           collective

bargaining units to hold recertification elections annually in

which      51%   of    all    eligible      employees           must       vote     in    favor    of

recertification.          In addition to the costs involved in educating

employees about the election and convincing employees to vote,



                                                  9
                                                                      No.    2012AP2067.awb


collective bargaining units must pay a certification fee.                             Wis.

Stat. § 111.70(4)(d)3.b.

       ¶206 Further,           although   collective         bargaining      units    must

provide benefits to all members, Act 10 eliminates fair share

agreements requiring members to pay their proportionate share of

the        cost   of      providing       those        services.8            Wis.    Stat.

§ 111.70(1)(f), (2).             Collective bargaining units' finances are

also       diminished     by    Wis.   Stat.     §    111.70(3g)      which     prohibits

municipalities          from     withholding         union   dues     from    employees'

wages.9

       ¶207 By making membership unduly expensive, these Act 10

provisions collectively infringe on the associational right to

organize.         There    is     no   doubt    that     these   provisions         act   to

discourage membership.              The majority's narrow focus on whether

the State is required to facilitate free speech shifts the focus

from this issue.               In doing so, the majority avoids directly

addressing        the      question        of        whether        these     provisions

impermissibly punish the exercise of the right to associate.



       8
       Although the majority questions the constitutionality of
fair share agreements, majority op., ¶58, the United States
Supreme Court recently affirmed that fair share agreements for
"full-fledged state employees" are constitutionally permissible.
Harris v. Quinn, 573 U.S. __, *29 (June 30, 2014). Harris dealt
with a challenge to fair share agreements brought by personal
assistants.     The court determined that because personal
assistants were not full-fledged public employees they could not
be compelled to make fair share payments.
       9
       It is notable that the                   majority recognizes this as a
burden in its discussion of                     the equal protection claims.
Majority op., ¶78.

                                           10
                                                                        No.    2012AP2067.awb


      ¶208 The        majority    similarly          avoids      addressing           Madison

Teachers' second argument, that Act 10 creates unconstitutional

conditions.         Again, it simply reshapes the argument.

      ¶209 The       majority    reasons    that          because      negotiating       with

employees      is    not   constitutionally          required,         it     cannot    be   a

constitutional violation to withhold such benefits from members

of collective bargaining units.                 Majority op., ¶37-38 (emphasis

added).      The focus of its analysis is deceptive as the doctrine

of   unconstitutional         conditions    does          not   look     at    whether    the

benefit   is    required.        Regardless          of    whether       the    benefit      is

required,      the    doctrine    focuses       on    whether       an      individual       is

required to give up a constitutionally protected right in order

to obtain the benefit.

      ¶210     The doctrine of unconstitutional conditions provides

that "the government may not deny a benefit to a person because

he exercises a constitutional right."                     Koontz v. St. Johns River

Water Mgmt. Dist., 133 S. Ct. 2586, 2594 (2013).                              This doctrine

reflects the idea that "the Constitution's protection is not
limited to direct interference with fundamental rights."                                Healy

v. James, 408 U.S. 169, 183 (1972).                  Freedoms, such as the right

to   associate,       "are    protected     not       only      against        heavy-handed

frontal   attack,       but   also   from       being      stifled       by    more    subtle

governmental interference."           Bates v. City of Little Rock, 361

U.S. 516, 523 (1960).

      ¶211 Even though there may be no constitutional right to a

benefit, the State cannot premise receipt of that benefit upon a
person foregoing a constitutionally protected right.                                   Bd. of

                                           11
                                                                         No.    2012AP2067.awb


Cnty. Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996).                                    Such a

condition        effectively        punishes          the         free        exercise        of

constitutional       liberties,      accomplishing               indirectly       what       the

State cannot command directly.                   Sherbert v. Verner, 374 U.S.

398, 406 (1963).

       ¶212 The seminal Wisconsin case applying this doctrine is

Lawson v. Housing Auth. of Milwaukee, 270 Wis. 269, 70 N.W.2d

605 (1955).       In Lawson, the court held that it was impermissible

for a federal statute to condition federal low-income housing on

tenants not being members of "subversive organizations."                              Id. at

274.      This    was     true    despite       the    fact       that        there   was    no

constitutional right to federal low-income housing.

       ¶213 The    court       explained    that       if        the    government       could

defend a statute "on the ground that the plaintiff is being

deprived thereby only of a privilege, and not of a vested right,

there is extreme danger that the liberties of any minority group

in our population, large or small, might be swept away."                              Id. at

275.    In other words, once the government has decided to grant a
benefit, it cannot condition that benefit on relinquishment of a

constitutionally protected right.

       ¶214 The majority pays lip service to this doctrine, but

then fails to actually apply it.                 Majority op., ¶¶29, 38.                    Its

focus   on   whether      the    benefit    itself          is    required       belies      any

suggestion    that       the    majority    is    following             the    precedent     on

unconstitutional conditions.

       ¶215 Act     10     is    clear:     if        you        have     exercised         your
associational right to organize as a collective bargaining unit

                                           12
                                                              No.    2012AP2067.awb


you lose your ability to negotiate over anything other than an

increase in base wages up to the amount of inflation.                         Wis.

Stat. §§ 111.70(4)(mb), 66.0506, 118.245.                This is the textbook

definition of an unconstitutional condition.               By permitting such

a    statute   to   stand,   the    majority    greatly    dilutes     the   First

Amendment protection on the right to freedom of association.

       ¶216 Because Act 10 infringes on associational rights to

organize by discouraging and punishing membership in collective

bargaining units, it can survive strict scrutiny only if it is

narrowly tailored to meet a compelling government interest.                    The

State has made no argument that Act 10 is narrowly tailored to

meet a compelling government interest and has conceded that it

cannot meet this standard.             Accordingly, I conclude that the

challenged provisions of Act 10 violate the constitutional right

of    public   employees     to    organize    in   a   collective    bargaining

unit.10

       10
        Madison Teachers alleges that Act 10 also violates the
equal protection clause. It points to the fact that Wis. Stat.
§§ 111.70(4)(mb),   66.0506,  and   118.245  prevent   collective
bargaining units from negotiating anything other than base wage
increases up to the amount of inflation.          Non-members of
collective bargaining units are not subject to this restriction.
Further, Wis. Stat. § 111.70(3)(g) prohibits municipalities from
withholding dues for collective bargaining units.    There is no
similar restriction preventing municipalities from withholding
dues for other types of organizations.

     As discussed above, the right to organize in a collective
bargaining unit is encompassed in the fundamental right to
associate protected by the First Amendment. See supra, ¶¶18-19.
The   challenged   provisions   of  Act   10   implicate   those
associational rights because they treat employees that are
members of a collective bargaining unit differently than
employees that are not members of collective bargaining units.
As these provisions of Act 10 implicate the fundamental right to
                               13
                                                         No.   2012AP2067.awb


                               II. Home Rule

     ¶217 Next, Madison Teachers challenges the provision in Act

10 which prohibits the City of Milwaukee from making pension

contributions     on    behalf    of      its   employees,     Wis.   Stat.

§ 62.623(1).11    It alleges that this provision violates the Home

Rule Amendment.12

     ¶218 The majority responds by shifting the focus to whether

Act 10 as a whole implicates a matter of statewide concern.                It

determines that because the purpose of Act 10 is to alleviate

"fiscal    strain,"    the   challenged    legislation   is    primarily    a

matter    of   statewide     concern.      Based   primarily    on    fiscal

concerns, the majority concludes that Act 10 does not violate




associate, strict scrutiny, rather than rational basis review,
should be applied to evaluate whether Act 10 violates the equal
protection clause.
     11
          Wisconsin Stat. § 62.623(1) provides:

     Beginning on July 1, 2011, in any employee retirement
     system of a 1st class city . . . employees shall pay
     all   employee  required   contributions  for  funding
     benefits under the retirement system. The employer may
     not pay on behalf of an employee any of the employee's
     share of the required contributions.
     12
          The Home Rule Amendment provides:

     Cities and villages organized pursuant to state law
     may determine their local affairs and government,
     subject only to this constitution and to such
     enactments of the legislature of statewide concern as
     with uniformity shall affect every city or every
     village.

Wis. Const. art. XI, § 3, cl. 1.

                                    14
                                                          No.   2012AP2067.awb


the Home Rule Amendment.13        Id., ¶¶109, 111-15.       Over and over

again     the   majority    emphasizes    that    legislation   implicating

fiscal issues is a matter of statewide concern:

             "[S]tatewide legislation aimed at improving the
              fiscal health of the State budget is indisputably
              a general state concern." Id., ¶115.

             "[T]he legislature's determination in 1947 that
              pension and retirement plans are a local concern
              does not mean it is an accurate portrayal of how
              pension and retirement plans impact the fiscal
              realities of Wisconsin in 2014." Id., ¶127.

             "The legislature has broad latitude to experiment
              with economic problems and we do not presume to
              second-guess its wisdom." Id., ¶119.
See also id., ¶¶111, 118, 120, 122.              In other words, when the

State     has   budgetary   issues   local   finances    are    matters    of

statewide concerns, even absent any showing of impact on the

State budget.

     ¶219 This determination is stunning, not just because of

its breadth, but also because it runs counter to the history of

     13
       I   acknowledge   that   the   majority  references   other
justifications for why Wis. Stat. § 62.623 affects a matter of
primarily statewide concern.    However, the discussion that the
majority devotes to these other justifications is minor to that
compared   with  the   repeated    and   much  discussed   primary
justification, i.e., the fiscal strain makes this a matter
primarily of statewide interest.

     In a single paragraph the majority mentions the State's
historic role in matters affecting the employer-employee
relationship. Majority op., ¶115. In another single paragraph
it touches upon the State's obligation to maintain a functioning
civil service system.   Id., ¶118.  Finally, it takes two short
paragraphs to mention the scope of Act 10 as justification.
Id., ¶¶121-22.



                                     15
                                                                         No.       2012AP2067.awb


the Home Rule Amendment and Milwaukee's pension system, ignores

our   precedent,       and    is       unsupported        by   fact.      The       majority's

result     substantially          strips      municipalities        of    their       right    to

self-govern as granted by the Home Rule Amendment because much

of what municipalities do involves "fiscal matters."

      ¶220 The Home Rule Amendment grants cities and towns the

authority to determine their own local affairs, subject only to

"enactments       of   the    legislature           of    statewide      concern       as    with

uniformity shall affect every city or every village."                                        Wis.

Const.     art.    XI,    §       3,    cl.    1.         A    review    of    its      history

demonstrates       that      it    was       enacted      in   response       to     calls    "to

decrease     the   role       of       the   state       legislature     in    establishing

municipal governments and to provide cities and villages with

greater authority to determine their own affairs."                                    Kerry A.

Burchill, Madison's Minimum-Wage Ordinance, Section 104.001, and

the Future of Home Rule in Wisconsin, 2007 Wis. L. Rev. 151,

161-62; Robert W. Hansen, Municipal Home Rule in Wisconsin, 21

Marq. L. Rev. 74, 76 (1937).14




      14
       Prior to its enactment, the Home Rule Amendment was
touted by multiple newspapers which emphasized the necessity of
local control of local affairs.     One journal explained: "the
legislature of Wisconsin is gradually but surely taking away the
rights of municipalities to govern themselves.    The matter has
reached the point today where democracy is in danger of being
replaced by imperialism." Gas Tax Wanted Home Rule Too, Stevens
Point Daily Journal, June 14, 1924, at 6.

                                               16
                                                         No.      2012AP2067.awb


    ¶221 Under the Home Rule framework, the funding of a city's

pension plan has historically been viewed as primarily local in

nature.     The   legislature   recognized     this   when   it    authorized

Milwaukee   to    establish   its   own   Milwaukee   Employee     Retirement

System (MERS).      § 31(1), ch. 41, Laws of 1947.             It expressly

declared Milwaukee's pension system to be "a local affair" that

should not be construed as a matter of statewide concern:

    For purpose of giving to cities of the first class the
    largest measure of self-government with respect to
    pension annuity and retirement systems compatible with
    the constitution and general law, it is hereby
    declared to be the legislative policy that all future
    amendments and alterations to this act are matters of
    local affair and government shall not be construed as
    an enactment of state-wide concern.
§ 31(1), ch. 441, Laws of 1947.




     Similar sentiments were expressed in other newspapers.
See, e.g., Joseph P. Harris, Questions and Answers, Madison
Capital Times, Jan. 19, 1924, Saturday Afternoon Ed., at 9
("Home rule secures to cities and villages a larger share in the
control over matters of purely local concern. It frees the city
or village from a considerable amount of state interference and
regulation."); Home Rule, Wisconsin Rapids Daily Tribune, Oct.
29, 1924, at 4 ("The meaning of the amendment is briefly stated
by the legislative committee of the Milwaukee common council,
which is working for its adoption, as follows:     The home rule
amendment if passed will give villages and cities in Wisconsin
broader self-governing powers and leave local affairs to the
local governing bodies, without first seeking the authority from
the legislature.").

     Public statements intended to persuade voters during the
ratification    process  inform   the   interpretation   of   a
constitutional amendment. Appling v. Walker, 2014 WI 96, ¶¶28-
37, ___ Wis. 2d ___, ___ N.W.2d ___; see also Dairyland
Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶19, 295 Wis. 2d 1,
719 N.W.2d 408.

                                     17
                                                                          No.   2012AP2067.awb


      ¶222 The       majority's              determination      that      the    funding      of

Milwaukee's pension system is primarily a matter of statewide

concern also ignores precedent.                        In State ex rel. Brelsford v.

Ret. Bd. of the Policemen's Annuity & Benefit Fund, 41 Wis. 2d

77,   163    N.W.2d       153       (1968),        a   constitutional        challenge        was

brought     against       a   Milwaukee           charter     amendment    that       permitted

retired police officers to receive pensions while working as

school teachers.              The court determined that pension funds for

Milwaukee police officers "seem[] overwhelmingly to be a matter

of predominate local concern."                     Id. at 87.

      ¶223 The court explained that "the state would have little

interest      in    whether         a     retired       policeman      taught        school   in

Milwaukee or in some other municipality.                            This is a matter of

unique interest to Milwaukee."                         Id.    Similarly, the court has

described "the control of the locality over payments from the

local      purse"    as       one       of    a   municipality's        "most        important"

functions.         Van Gilder v. City of Madison, 222 Wis. 58, 81-82,

267 N.W. 25 (1936).15
      ¶224 As       discussed           in     State     ex   rel    Ekern      v.     City    of

Milwaukee, 190 Wis. 633, 641, 209 N.W. 860 (1926), a "local

affair" is one "which much more intimately and directly concerns


      15
       Van Gilder created an exception to this general rule for
the salaries of police officers, noting that "the preservation
of order, the enforcement of law, the protection of life and
property, and the suppression of crime are matters of state-wide
concern."   Van Gilder v. City of Madison, 222 Wis. 58, 76, 267
N.W. 25 (1936).     As discussed above, this exception did not
extend to police pension funds. State ex rel. Brelsford v. Ret.
Bd. of the Policemen's Annuity & Benefit Fund, 41 Wis. 2d 77,
87, 163 N.W.2d 153 (1968).

                                                  18
                                                                       No.   2012AP2067.awb


the inhabitants of that community than the casual visitor or the

other parts of the state."               The funding of Milwaukee's pension

fund for its city employees fits within this description.                               The

fund    is   "entirely      self-reliant         in     both    its     management      and

funding."      Majority op., ¶114.           Accordingly, its funding has no

demonstrable impact on other parts of the State.

       ¶225 Our    jurisprudence       is    consistent         with    that     of   other

states that have determined that compensating city employees is

primarily a matter of local concern.                     See, e.g., Bruckshaw v.

Paolino, 557 A.2d 1221, 1224 (R.I. 1989) ("the regulation of

city    employee      pensions      is      of     local       concern");        N.    Ohio

Patrolmen's Benevolent Ass'n v. Parma, 402 N.E.2d 519, 525 (Ohio

1980)   ("the     ability    to   determine        the       salaries    paid    to   city

employees is a fundamental power of local self-government.");

City of Colorado Springs v. State, 626 P.2d 1122, 1127 (Colo.

1980) ("Although the establishment of firemen's pension plans is

of statewide concern, the extent to which a home rule city must

provide      financial   support       for       such    a     plan     is   a   question
intimately      involving    city      budgeting         and    the     assessment      and

collection of taxes for municipal purposes. These are local and

municipal matters."); Sonoma Cnty. Org. of Public Emps. v. Cnty.

of   Sonoma,    591   P.2d   1,   13     (Cal.        1979)    ("the    wages    paid    to

employees of charter cities as well as charter counties is a

matter of local rather than statewide concern."); Crawford v.

City of Chicago, 710 N.E.2d 91, 98 (Ill. App. Ct. 1999) ("The

power to extend to its employees both compensation and benefits



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                                                                    No.    2012AP2067.awb


is ineluctably essential to the operation of local governmental

units such as the City in the present case.").16

      ¶226 Further undermining its analysis, the majority relies

on the broad purpose behind Act 10, rather than the purpose

behind the specific statute at issue, Wis. Stat. § 62.623(1).

It does so absent any facts in the record showing that Wis.

Stat. § 62.623(1) does anything to achieve Act 10's purpose or

is in any way related to the State budget.                    Majority op., ¶¶118-

23.

      ¶227 The State presented no credible evidence showing that

Milwaukee        pension   expenditures     have      any   impact    on        the   State

budget.          Although the State pointed to its "shared revenue"

program, the amounts provided by the State to a municipality

under that program are not based on the municipality's budget or

expenditures.        See Wis. Stat. §§ 79.02, 79.035.

      ¶228 The          shared    revenue       program     does      not        show    a

relationship between city contributions to city employee pension

plans      and    the     State   budget.        Indeed,      even        the    majority
recognizes that the administration of a city's retirement system

is "entirely self-reliant in both its management and funding."

Majority     op.,       ¶114.     There   are    no   facts    in    the        record   to

determine that Milwaukee's funding of employee pensions has any


      16
        See also Rebecca Hanner White, Robert E. Kaplan, &
Michael W. Hawkins, Ohio's Public Employee Bargaining Law: Can
it Withstand Constitutional Challenge?, 53 U. Cin. L. Rev. 1, 31
(1984) ("The establishment of wages, hours, and other terms and
conditions of employment and decisions pertaining to hiring,
promotion, retention, discipline and dismissal of employees are
fundamental aspects of local government.").

                                          20
                                                                        No.    2012AP2067.awb


effect       on    statewide     financial         concerns.           Accordingly,          the

majority's         determination       that    Wis.       Stat.    §    62.623       concerns

primarily a statewide matter is unsupported.

       ¶229 Having        determined      that        Wis.      Stat.     §        62.623     is

primarily a statewide matter, the majority declines to analyze

what it describes as the second step of a Home Rule challenge:

uniformity.          Id., ¶94.      After devoting several paragraphs to

expound on uniformity, id., ¶¶91-95, 98-99, 102-09, the majority

makes no attempt to apply its uniformity analysis to the facts

of    this    case.       Without      any     discussion         or    explanation          the

analysis simply ends.            This presents a significant void in the

majority's analysis.

       ¶230 The issues of when and whether a statute applying to a

specific set or class of cities is uniform requires a nuanced

analysis.          State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520,

530   n.16,       253   N.W.2d   505    (1977).           The   concern       of    targeting

individual cities is echoed throughout case law as the court has

grappled      with      the   problem    of        uniformity      in    the       home     rule
context.          See, e.g., id.; State ex rel. Sleeman v. Baxter, 195

Wis. 437, 448, 219 N.W. 858 (1928); Ekern, 190 Wis. at 642.                                  The

majority      opinion     cannot    simply         wave    away    these       concerns      by

abruptly ending its analysis. The hole left in the majority's

application on this issue further renders its conclusion infirm.

       ¶231 By determining that Wis. Stat. § 62.623(1) primarily

concerns a statewide matter because it deals with finances, the

majority ignores the history of the Home Rule and the Milwaukee
pension system, as well as relevant case law, and has greatly

                                              21
                                                                No.    2012AP2067.awb


narrowed the scope of the Home Rule Amendment.                        Further, its

focus on the purpose behind a broad act, absent any evidence

that the specific legislation is actually aimed at affecting

that purpose, gives the legislature more leeway to legislate on

local issues than was intended by the Home Rule Amendment.

       ¶232 Under the majority's holding it is hard to imagine

what        is   left   for     municipalities     to    govern       autonomously.

Accordingly, for the reasons discussed above, I conclude that

the    majority     has   not    saved   Wis.    Stat.   §   62.623(1)    from    its

constitutional challenge.

                                III. Contract Clause

       ¶233 Madison Teachers also asserts that the provision in

Act 10 prohibiting Milwaukee from making pension contributions

on behalf of its employees violates the Contract Clause of the

Wisconsin Constitution.17             It argues that the Milwaukee Charter

Ordinance        constitutes     a    contract   guaranteeing     its     right   to

benefits.         Because Act 10 prohibits the benefit of employer

funded pension contributions, it contends that Act 10 interferes
with its contract rights.

       ¶234 By twisting the definition of the word "benefit," the

majority determines that employer pension contributions are not

really benefits at all.              As a consequence it is able to exclude

the employer contributions, determining that they are not part


       17
       The Contract Clause provides: "[n]o bill of attainder, ex
post facto law, nor any law impairing the obligation of
contracts, shall ever be passed." Wis. Const. art. I, § 12.



                                          22
                                                             No.    2012AP2067.awb


of the benefit contract as provided in the Milwaukee Charter

Ordinance.    Accordingly, it concludes that the provision in Act

10 prohibiting Milwaukee from making pension contributions does

not violate the Contract Clause.

    ¶235 This analysis is problematic in two respects: (1) it

overlooks the language of the Milwaukee Ordinance and (2) it is

contrary to the ordinary meaning of the term "benefit."                          By

overlooking language in the ordinance and by demonstrating its

willingness   to    creatively    interpret      contract    terms       to   avoid

finding   a   violation   of     the    Contract      Clause,      the   majority

undermines the right to contract.

    ¶236 Under the Contract Clause, "[n]o . . . law impairing

the obligation of contracts, shall ever be passed."                  Wis. Const.

art. I, § 12.      Although the Milwaukee Charter Ordinance provided

that the city will make pension contributions to MERS on behalf

of its employees, the legislature included in Act 10 provisions

prohibiting   Milwaukee   from    making      those   contributions.           Wis.

Stat. § 62.623.      Madison Teachers asserts this statute violates
the Contract Clause.

    ¶237 Milwaukee's Charter Ordinance provides that Milwaukee

will fund member pension contributions to MERS on behalf of its

employees.      Specifically,     it    states     that     "the    city      shall

contribute on behalf of general city employees 5.5% of such

member's earnable compensation."            Mil. Ch. Ord. § 36-08-7-a-1.

    ¶238 Next, the ordinance states that employees shall have a

benefit contract as provided by the ordinance that shall not be
impaired by future legislation:

                                       23
                                                       No.    2012AP2067.awb

    Every such member . . . shall thereby have a benefit
    contract in . . . all . . . benefits in the amounts
    and upon the terms and conditions and in all other
    respects as provided under this [ordinance] . . . and
    each member and beneficiary having such a benefit
    contract shall have a vested right to such . . .
    benefits and they shall not be diminished or impaired
    by subsequent legislation or by any other means
    without his consent.
Mil. Ch. Ord. § 36-13-2-a.

    ¶239 Then,   the    ordinance    states   that   employees     have   a

vested contract right to their benefits:

    Every member, retired member, survivor and beneficiary
    who participates in the combined fund shall have a
    vested and contractual right to the benefits in the
    amount and on the terms and conditions as provided in
    the law on the date the combined fund is created.
Mil. Ch. Ord. § 36-13-2-g.

    ¶240 The majority acknowledges that those provisions create

a contract right to pensions, but determines that they do not

create a contract right to pension contributions.            Majority op.,

¶¶144-45, 156-57.   It notes that "[f]or a legislative enactment

to be considered a contract, 'the language and circumstances

[must] evince a legislative intent to create private rights of a

contractual nature enforceable against the State.'"             Id., ¶142
(quoting Wisconsin Prof'l Police Ass'n, Inc. v. Lightbourn, 2001

WI 59, ¶145 n.188, 243 Wis. 2d 512).      Reasoning that there is no

indication that the city council intended to classify pension

contributions as benefits, the majority determines that there is

no contractual obligation for Milwaukee to make those payments.

Id., ¶¶150, 153, 158.

    ¶241 The majority supports its strained interpretation of
the term "benefit" with a cursory reading of Milwaukee's Charter

                                    24
                                                                     No.    2012AP2067.awb


Ordinance.       It suggests that the term "benefits" as used in the

ordinance, cannot mean pension contributions because Milwaukee's

obligation       to     pay   employee     contributions         "is       conspicuously

absent    from    [the    section    of    the    Milwaukee       Charter       Ordinance

titled "Benefits," Mil. Ch. Ord. § 36-05]."                     Id., ¶152.

     ¶242 In      reaching     its   result,       the    majority     overlooks      the

very first section in the benefits chapter of the Milwaukee

Charter    Ordinance.          Milwaukee    Charter        Ordinance        §   36-05-1-d

specifically          incorporates   Mil.        Ch.     Ord.    §   36-08-7,       which

requires the city to fund the 5.5% member contributions of its

employees.       It states:

     The member shall be guaranteed that if the total
     benefit   in  the   form   of  a   monthly  retirement
     allowance . . . does not equal the amount of the
     member's contributions as provided for in s. 36-08-7
     [requiring the city to fund those 5.5% member
     contributions], . . . then the balance of the member's
     contributions with interest shall be payable in lump
     sum amount to a designated beneficiary or to an estate
     entitled thereto.
Mil. Ch. Ord. § 36-05-1-d (emphasis added).18




     18
       The majority appears to either dismiss or overlook
additional sections of the Ordinance: "Separation Benefits,"
Mil. Ch. Ord. § 36-05-6-6, and "Ordinary Death Benefit," Mil.
Ch. Ord. § 36-05-6-10.     Both likewise reference Milwaukee's
contributions to the pension funds. Both reference "accumulated
contributions," which is a defined term that incorporates the
5.5% city funded member contributions as set forth in Mil. Ch.
Ord. § 36-08-7.

                                          25
                                                           No.   2012AP2067.awb


      ¶243 Indeed,       the    majority's     assertion     that     pension

contributions are not benefits is contrary to the common use of

the term "benefits."       See, e.g., State ex rel. City of Manitowoc

v. Police Pension Bd., 56 Wis. 2d 602, 612A, 203 N.W.2d 74

(1973) ("[I]n view of modern day employment inducements, fringe

benefits such as insurance premiums, pension fund contributions

and   perhaps   others    are   to   be    included   in   the   formula   for

calculating pension benefits for police and firemen."); Titan

Tire Corp. of Freeport, Inc. v. United Steel, Paper, & Forestry,

Rubber, Mfg.,     734 F.3d 708, 731 (7th Cir. 2013) ("They were

also receiving an array of fringe benefits, including health

care and pension contributions."); City of Ft. Wayne v. Ramsey,



     The Separation Benefits provision states: "Should a member
cease to be an employee . . . he or she shall be paid his or her
accumulated contributions as they were at date of separation
from service." Mil. Ch. Ord. § 36-05-6-6 (emphasis added).
Similarly, the Ordinary Death Benefit provision states: "Upon
receipt of proper proofs of death . . . his or her accumulated
contributions shall be paid to such person, or such trustee, if
any, as he or she has nominated." Mil. Ch. Ord. § 36-05-06-10
(emphasis added).

     "Accumulated contributions" is a defined term in the
ordinance, referring to "the sum of the contributions in the
member's account, as provided for in s. 36-08-7-i."    Mil. Ch.
Ord. § 36-02-1.     Section 36-08-7-i of Milwaukee's Charter
Ordinance states in relevant part that "[t]he member's account
shall consist of those member contributions deposited in
accordance with pars. . . b."      Again, paragraph b requires
Milwaukee to make contributions on behalf of its employees into
their pension account.    Mil. Ch. Ord. § 36-08-7-b. Thus, the
majority's reliance on the absence of employer contributions
from the benefits chapter of the Milwaukee Charter Ordinance
appears misplaced.



                                      26
                                                                        No.    2012AP2067.awb


578 N.E.2d 725, 728 (Ind. Ct. App. 1991) ("employer-paid pension

contributions are in the nature of a fringe benefit").

      ¶244 Not only is the majority's assertion contrary to the

common use of the term, it is contrary to the majority's common

experience.           Every year the State of Wisconsin sends to its

employees a "Statement of Annual Benefits."19                               The benefit of

employer    pension          contributions        is     among   the   several          benefits

listed.     For executive branch employees, pension contributions =

benefits.              For       legislative           branch      employees,           pension

contributions         =   benefits.          As     the   majority     well        knows,      for

judicial    branch        employees,         pension      contributions        =    benefits.

Every State of Wisconsin paycheck stub lists an employer paid

pension contribution as a benefit.

      ¶245 Nevertheless, the majority persists in twisting the

definition       of    benefit     allowing         it    to   creatively      interpret        a

contract in a manner permitting the State to disregard it.                                     The

majority rests its conclusion that there is no violation of the

Contract Clause on the analytically unsupportable premise that
for   Milwaukee,          an     employer     pension          contribution        is    not    a

benefit.

      ¶246 The majority's strained reading of the term "benefit,"

excluding employer pension contributions from its definition, is

contrary    to    the      use    of   the    term       "benefit"     in    the    Milwaukee

Charter Ordinance and the common use of the term.                             Accordingly,

its    analysis           of     whether       the        prohibition         on        employer


      19
       Dep't of Employee Trust Funds, WI Retirement System, Form
No. ET-7365.

                                               27
                                                                No.    2012AP2067.awb


contributions       in   Wis.   Stat.    §     62.623     violates    the   Contract

Clause     does    not   withstand       scrutiny.         Allowing    Wis.      Stat.

§ 62.623 to stand undermines the protections of the Contract

Clause.

                                         IV.

     ¶247    In sum, the majority's failure to address the actual

issues presented in this case allows it to reach results that

countenance the needless diminution of multiple constitutional

rights.     The right to freedom of association is diluted as the

majority has opened the door for the State to withhold benefits

and punish individuals based on their membership in disfavored

groups.     Municipalities' right to self-govern as granted by the

Home Rule Amendment now rings hollow as the majority determines

that when the State has budgetary concerns, anything dealing

with local finances is a statewide matter.                     And the right to

contract     is    undermined       as    the    majority      demonstrates        its

willingness       to   creatively    interpret       a    contract    in    a   manner

permitting the State to disregard it.
     ¶248 For the reasons set forth above, I determine that Act

10   unconstitutionally             infringes        on      protected          rights.

Accordingly, I respectfully dissent.

     ¶249 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON joins this dissent.




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