Madison Teachers, Inc. v. Scott Walker

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.

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 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
 No. 2012AP2067

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

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 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
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 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.
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 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
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 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

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 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.).

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 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

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 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.

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 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).

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 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

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 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.

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 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.

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 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.

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 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).

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 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.

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 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?").

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 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.

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 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.

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 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.

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 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

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 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).

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 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.

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 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.

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 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.

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 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).

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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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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
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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

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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
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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:

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 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

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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.

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¶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.

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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.

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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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