It’s no surprise from the oral arguments that the Wisconsin Supreme Court has removed the contempt order that prevented the Employment Relations Commission from holding the annual school certification elections mandated by Act 10 (though the time and date of when the decision was released — ~7pm on Nov. 21st — is not standard procedure). Yesterday, the Commission decided to squeeze in the November elections, come what may.
There really is no legal or practical reason for either the court’s or the Commission’s actions here other than wanting to put teachers’ unions through the ringer. Justices Abrahamson and Bradley wrote an excellent dissent that demonstrates just how wrong-headed these actions are. Excerpts below:
¶32 The United States Supreme Court has adhered to this rule of law for decades.[n2] Then-Judge Scalia aptly described it as follows: “[T]he discretionary relief of declaratory judgment is, such in a context as this where federal officers are defendants, the practical equivalent of specific relief such as injunction or mandamus, since it must be presumed that federal officers will adhere to the law as declared by the court.” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985).
[n2] See, e.g., Samuels v. Mackell, 401 U.S. 66, 72 (1971) (holding that the creation of potential remedies after issuance of the declaratory judgment pending appeal “has virtually the same practical impact as a formal injunction would”); see also Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63 Duke L.J. at 38, forthcoming 2014 (“[I]n many cases where a plaintiff seeks prospective relief, a declaratory judgment and an injunction are functionally interchangeable. Both resolve uncertainty about the law and both bind the losing party.”).
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¶36 Now, the per curiam does an about-face on the law. It attempts to transform the rule of law into an untenable rule of defiance: government officials who are defendants in a case need not obey a court’s declaratory judgment that precludes them from enforcing facially unconstitutional statutes.
¶37 “A declaratory judgment is binding on the parties before the court.” 10B Fed. Prac. & Proc. Civ. § 2771 (Wright & Miller, 3d ed. 2013) (emphasis added). . . .
¶42 The per curiam holding today would seem to require every individual person or organization affected by Act 10 to litigate a separate suit, eliminating the efficiency benefits and practicality of declaratory judgment as applied to a governmental actor. Such duplicative litigation is unworkable.
The dissent continues for many more pages showing how there is no legal basis for pushing aside the circuit court’s contempt order. It is worth re-reading.
Wisconsin Unemployment 