Update: Wisconsin Court of Appeals Reverses Lower Court That Struck Down Portions of Act 10 Affecting Public Sector Employees’ Collective Bargaining Rights
Update 7/29/26:
On July 29, 2026, the Wisconsin Court of Appeals, District 2, overturned the Dane County Circuit Court decision and upheld Act 10. Although Act 10 had been declared unconstitutional by a Dane County Circuit Court judge in 2024, the Circuit Court stayed that ruling pending its appeal and thereby kept Act 10 in place as the law of the land, as we reported earlier.
In its 2-1 decision upholding Act 10, the Wisconsin Court of Appeals panel held that the challenged provisions of the law do not violate the Wisconsin Constitution’s Equal Protection Clause and that the lower court lacked a sufficient legal basis for overturning it. The majority decision also pointed out that the law had already been upheld by numerous courts following challenges to it in 2024 and 2025, in both state and federal court, and that this precedent should not be disturbed.
The case challenging Act 10 is likely to be appealed to the Wisconsin Supreme Court, where the liberal justices hold a 4-3 majority. That majority will increase to 5-2 in September 2026 when Wisconsin Supreme Court Justice-elect Chris Taylor, who was an outspoken opponent of Act 10 when she was a Democratic state legislator, joins the Court. Conservative Wisconsin Supreme Court Justice Brian Hagedorn has previously announced that he will recuse himself from any Act 10 lawsuit that is heard by the Wisconsin Supreme Court given his role as chief legal counsel for former Republican Governor Scott Walker when introduced and signed Act 10 into law.
We will continue to track this case and provide timely updates as developments occur.
Update 1/24/25: The decision to overturn portions of Act 10 has been stayed pending its appeal to the Wisconsin Court of Appeals (District 2). As a result, all portions of Act 10 currently remain in place. In granting the stay, the Dane County Circuit Court noted that after the Court of Appeals rules on the case, it “likely … will proceed to the Wisconsin Supreme Court.” We will continue to monitor the case and provide timely updates.
Update 12/20/24: The decision to overturn portions of Act 10 has been temporarily stayed, with the stay expected to be in place until at least January 24, 2025.
On December 2, 2024, a Dane County, Wisconsin Circuit Court issued a landmark decision striking down portions of 2011 Wisconsin Act 10 (“Act 10”) and thus affecting the collective bargaining rights of public sector employees in Wisconsin and potentially reshaping public sector bargaining in the State once again.
The decision stems from a finding by the Wisconsin Circuit Court on July 3, 2024, that provisions in Act 10 violated the State Constitution’s equal protection clause because there was no rational basis for its different treatment of “public safety employees” and “general employees.” The December 2, 2024 decision identifies which specific parts of Act 10, as well as 2015 Wisconsin Act 55 (“Act 55”), are unconstitutional.
While the Wisconsin Legislature intervened in the case and argued that the Court should only strike two provisions of Act 10 which relate to the definition of a “public safety employee,” the Court declined to do so and ultimately struck many of Act 10’s provisions, and certain provisions in Act 55. The provisions the Court struck include:
- Act 10’s provisions which limited bargaining for municipal employees represented by unions to wages only.
- Act 10’s provisions which limited the amount of wage increases that could be bargained.
- Act 10’s provisions which required annual recertification elections.
- Act 55’s provisions requiring that in order for a Union to be certified as the representative of a unit of state or municipal employees at least 51% of the employees in the unit (instead of just those voting) vote for the union.
The Wisconsin State Legislature has already appealed the decision to the Wisconsin Court of Appeals. It is also expected that the Legislature will seek to stay enforcement of the decision pending its appeal. As a result, it remains to be seen how this decision will impact public sector bargaining in Wisconsin. However, absent a stay of the decision being granted or a reversal of the decision by the Court of Appeals, at this time various provisions of Acts 10 and 55, including those identified above, are no longer in effect.
As such, municipal and state employers should work closely with legal counsel, including regarding how they will respond to any demands for union recognition or to bargain over issues other than wages. If you have any questions regarding the information of this update, please contact your Quarles attorney or:
- Judi Williams-Killackey: (414) 277-5439 / judi.williams@quarles.com
- Tyler Roth: (414) 277-5765 / tyler.roth@quarles.com