Wisconsin Supreme Court hears arguments on Act 10 Monday

MADISON (WITI) -- The Wisconsin Supreme Court will decide the fate of Act 10 -- one of the most polarizing pieces of legislation in state history. It was controversial -- but is it constitutional? That's what the state's High Court will decide.

The echoes of the moment that brought the Solidarity Singers to the state Capitol still reverberate today -- even as the law that brought the protesters to the Capitol in the first place was argued before the Wisconsin Supreme Court.

"Today we're called to decide the substantive merits of Act 10," Justice Michael Gableman said.

Act 10 is the signature achievement of Gov. Scott Walker's administration. The law strips most collective bargaining from most public employees.

The question facing the court is -- Did the law violate a constitutional right to freedom of speech, freedom of association and equal protection under the law?

"That's what Act 10 says," Attorney General J.B. Van Hollen said.

Van Hollen on Monday, in his first appearance before the High Court, argued that the law did not violate the constitution in an exchange with Justice Ann Walsh Bradley.

"I see in this case, that's where the two ships are passing. Your opponents see the rights of citizens to associate together for this purpose as a constitutional right of association. You take what the Court of Appeals calls the second way, in which the term collective bargaining has been used as the statuary provision," Justice Bradley said.

"Your Honor, I don't believe that's the case. I don't believe the two ships pass in the night. I believe they collide, and the state has the bigger ship, and the state should win," Van Hollen said.

However, lawyers for the Madison Teachers Union say their argument is about the constitution -- not collective bargaining.

"This law was not passed in a vacuum. At the time there were multiple employees in unions, and to that extent they have associational rights. Those unions, which are the heart and soul, then were told you can only negotiate nothing -- you have to prove your existence, so most certainly the effect of this legislation is to burden the actions of the union," Lester Pines said.

The court's final decision may not come for months.

Monday's arguments centered on the judicial standard of review -- in other words, what the justices should apply in deciding the case.

The unions want the justices to apply "strict scrutiny" in which the court presumes the policy to be invalid unless the state demonstrates a compelling reason to justify the policy. The Walker administration wants the justices to use a standard called "rational basis," which examines whether the Legislature had a reasonable, not arbitrary basis for enacting the law.