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Contact: Rick Esenberg

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Email: rick@will-law.org

WILL Puts Madison School Board On Notice Sends letter warning against violating Act 10

May 15, 2014, Milwaukee, WI – Today, the Wisconsin Institute for Law & Liberty (WILL) sent a

letter to the Madison Metropolitan School District School Board Members, reminding them that Act

10 is still the law of the land and any governmental entity that ignores it does so at the risk of

litigation.

This week, it was announced that the Madison Teachers Inc. is lobbying the School Board members

to extend an existing collective bargaining contract until June 2016. Because the contract contains

terms that are not permitted under Act 10, this extension is almost certainly illegal. The School

Board is meeting today, Thursday, at 5:30.

Act 10 has been upheld by every court, except a single branch of the Dane County Circuit Court.

That decision has been appealed and a decision by the Wisconsin Supreme Court is imminent.

Given the weight of authority and the merits of the various arguments, there is a substantial

probability that the Court will overturn the decision of the circuit court in MTI v. Walker. If that

happens, the lower court decision would simply become null and void – as if it never occurred.

Even now, the decision has no effect outside of the parties involved. The nearly 5,000 teachers

employed by the School District and School Board are not involved in MTI v. Walker.

Explains Rick Esenberg, WILL President, “The risk of litigation if the Board extends the contract is

not a theoretical one. When Milwaukee Area Technical College and the Kenosha School District

violated Act 10, we filed lawsuits against both, challenging the contracts on behalf of teachers.”

The letter to the MMSD School Board Members can be found on the next page and on the website.

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The Wisconsin Institute for Law & Liberty is a non-profit, public interest law firm promoting the

public interest in constitutional and open government, individual liberty, and a robust civil society. Further inquiries may be directed to Mr. Esenberg at rick@will-law.org.

WISCONSIN INSTITUTE FOR LAW & LIBERTY, INC.

1139 E. Knapp Street, Milwaukee, WI 53202-2828 414-727-WILL

Fax 414-727-6385 www.will-law.org

Richard M. Esenberg Michael Fischer Brian W. McGrath Thomas C. Kamenick Charles J. Szafir III

Executive Director

Stacy A. Stueck

May 15, 2014

School Board Members of the VIA EMAIL

Madison Metropolitan School District

545 W. Dayton St.

Madison, WI 53703-1967

Re: Illegality of extending the collective bargaining agreement with MTI

Dear Board Members of the Madison Metropolitan School District:

This week, it was reported that Madison Teachers Inc. (“MTI”) is lobbying you to extend the

existing collective bargaining contract until June 2016. Last October, the current contract was

extended for the 2014-2015 school year. Given that the Wisconsin Supreme Court is set to rule

on MTI v. Walker any day now – and given the other state court and federal court decisions now

in place, it is a near certainty that Judge Colas’ decision will be overturned. As a result, the

timing of the request by MTI is obviously intended to evade the upcoming decision by the

Wisconsin Supreme Court.

Act 10 has been upheld in every court that has considered it, except for Judge Colas. It was

ruled to be constitutional by the U.S. Court of Appeals for the Seventh Circuit, the U.S. District

Court of the Western District of Wisconsin, and by Dane County Circuit Court Judge John

Markson. Consequently, the likelihood of Act 10 being declared constitutional in the Wisconsin

Supreme Court is extremely high.

This presents a major problem as you debate whether to grant MTI’s request to collectively

bargain and extend the current CBA. Act 10 prohibits terms that are inconsistent with its

provisions in any extension, modification or renewal of a preexisting contract. Both the previous

extension and any new extension would, thus, violate Act 10.

While MTI might argue that an extension is lawful because the existing decision by Judge Colas

has not yet been overturned, that decision has no effect outside of the parties involved in that one

specific case. Keep in mind that neither you, the School District, the nearly 5,000 individual

teachers employed by the School District, nor individual Madison taxpayers, are parties to MTI

v. Walker. As a result, neither you nor the School District could rely on Judge Colas’ decision as

a defense to any claim that we, or other counsel, might bring on behalf of a taxpayer and/or

teacher.

Moreover, if the Supreme Court overturns Judge Colas’ decision, then his declaratory ruling in

MTI v. Walker would become null and void –as if it never existed. If the CBA is unlawfully

extended, then every taxpayer in Madison would have a valid claim arising from the illegal

expenditure of tax dollars, and every teacher in Madison would have a valid claim for violation

of their rights under Wis. Stat. §111.70(2).

We remind you that the risk of legal action is a very real one. Last spring we filed a lawsuit

against the Milwaukee Area Technical College (MATC) for violating Act 10 by collectively

bargaining with the employees’ unions, as well as approving a contract that included terms that

violated Act 10. More recently, in November 2013, when the Kenosha Unified School District

(KUSD) violated Act 10, we filed a lawsuit against the District, School Board and the unions on

behalf of a taxpayer and teacher.

We ask that you weigh these costs as you determine the best course of action for the Madison

Metropolitan School District, teachers, and taxpayers. Obviously, you cannot be forced to use

the tools provided by Act 10 to better serve Madison’s children and taxpayers. But you do have

to comply with the law, and we hope that you will at least choose to avoid the litigation costs that

will likely result from a decision to extend the CBA in violation of Act 10.

Very truly yours,

WISCONSIN INSTITUTE FOR LAW & LIBERTY

Richard M. Esenberg

President & General Counsel

414-727-6367 Direct