The Republican-controlled Wisconsin Legislature on Tuesday asked that a liberal state Supreme Court justice step aside in a pending case that seeks to overturn a 2011 law that effectively ended collective bargaining for most state workers.

If Justice Janet Protasiewicz agrees not to hear the case, the court would be deadlocked 3-3 between liberals and conservatives. The lawsuit has massive implications for union rights in the battleground state.

A Dane County Circuit Court judge last month overturned the bulk of the law, saying it violates equal protection guarantees in the Wisconsin Constitution by dividing public employees into “general” and “public safety” employees. Under the ruling, all public sector workers who lost their collective bargaining power would have it restored to what was in place before 2011.

The judge put the ruling on hold pending the appeal. School workers unions that brought the lawsuit have asked the Supreme Court to take it directly, skipping the appeals court. The Wisconsin Supreme Court, controlled 4-3 by liberals, has not yet decided whether to take the case.

Republicans enacted the law in the face of massive protests 14 years ago that made Wisconsin the center of the national fight over union rights. The debate also catapulted then-Gov. Scott Walker onto the national stage, sparked an unsuccessful recall campaign and laid the groundwork for his failed 2016 presidential bid. The law’s adoption led to a dramatic decrease in union membership across the state.

Protasiewicz is the court’s newest member and ran in 2023 as an opponent of the union law, known as Act 10. Her victory gave liberals the majority on the court for the first time in 15 years. That majority is on the line again in the April 1 Supreme Court election to fill the seat of a retiring liberal justice.

Protasiewicz said during the campaign that she believes Act 10 is unconstitutional. She also told the Milwaukee Journal Sentinel that she would consider recusing herself from any case challenging the law. Protasiewicz participated in protests against it and signed the petition to recall Walker.

The Legislature’s top Republicans, Senate Majority Leader Devin LeMahieu and Assembly Speaker Robin Vos, said Tuesday that it would be “right and ethical” for her to step aside. The motion seeking her recusal references comments she made during the campaign about coming from a union background, her belief that the law was unconstitutional and her opposition to Walker.

“Recusal is warranted because of the appearance that she has prejudged the merits of this case,” Republicans argued in the motion.

Protasiewicz declined to comment when asked via email if she would recuse herself. The decision on whether to do so is entirely hers.

Jacob Karabell, attorney for the unions seeking to overturn the law, called the recusal request “meritless” and an attempt to delay a final ruling.

Protasiewicz is not the only justice on the court with a potential conflict.

Conservative Justice Brian Hagedorn was Walker’s chief legal counsel and had a role in drafting Act 10. During his successful run for the court in 2019, Hagedorn would not promise to recuse himself if a case challenging Act 10 came before the court.

No motion has been filed with the court asking Hagedorn to step aside, but Democratic legislative leaders on Tuesday said he should. Hagedorn did not respond to an email seeking comment.

If both Protasiewicz and Hagedorn recused themselves, liberals would have a 3-2 advantage.

Supporters of the law have said it provided local governments more control over workers and the powers they needed to cut costs. Repealing the law, which allowed schools and local governments to raise money through higher employee contributions for benefits, would bankrupt those entities, backers of Act 10 have argued.

Democratic opponents argue that the law has hurt schools and other government agencies by taking away the ability of employees to collectively bargain for their pay and working conditions.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup. This story is published in partnership with The Associated Press.

Republicans ask Wisconsin Supreme Court Justice Janet Protasiewicz to step aside in union case is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin’s state Supreme Court election next spring already had high stakes, with majority control on the line. But a judge’s ruling this week restoring collective bargaining rights to roughly 200,000 teachers and other public workers in the state further intensifies the contest.

The liberal-controlled court has already delivered a major win to Democrats by striking down Republican-drawn legislative maps. Pending cases backed by liberals seek to protect abortion access in the state and kneecap Republican attempts to oust the state’s nonpartisan elections leader.

Now, the court could be poised to notch another seismic win for Democrats, public teachers and government workers by restoring the collective bargaining rights they lost 13 years ago in a fight that decimated unions, sparked massive protests and emboldened Republicans who later restricted rights for private-sector unions.

Liberals gained the majority on the Wisconsin Supreme Court for the first time in 15 years following a 2023 election that had deep involvement from the Republican and Democratic parties, broke turnout records and shattered the national record for spending on a court race.

Abortion took center stage in that race. Now, it appears that union rights could be a major issue in the 2025 contest to replace a retiring liberal justice.

“You can make the argument that this race is more important than the race for the Legislature or the governor,” said Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said Wednesday. “I don’t think you can understate the importance of this race to the voters, no matter which side of the political divide you are on.”

The April 1 election will pit Brad Schimel, a Republican judge who supports President-elect Donald Trump and served as Wisconsin’s attorney general from 2015 until 2019, against Susan Crawford, a liberal judge whose former law firm represented teachers in a lawsuit that sought to overturn the anti-collective bargaining law.

The Wisconsin Supreme Court, then controlled by conservatives, upheld the law known as Act 10 in 2014.

Crawford’s past attempt to overturn Act 10 raises questions about whether she could rule objectively on it, Schimel said in a statement to The Associated Press. His campaign on Monday branded Crawford as a “radical” and said she would be a “pawn” of the Democratic Party if elected.

Schimel, when he was attorney general, said he would defend Act 10 and opposed having its restrictions applied to police and firefighter unions, which were exempt from the law.

Treating public safety workers differently from others makes the law unconstitutional, Dane County Circuit Judge Jacob Frost ruled Monday. He sided with teachers and restored collective bargaining rights, a decision affecting about 200,000 workers in the state, according to the Wisconsin Policy Forum.

The Republican-controlled Legislature promptly appealed.

Crawford’s former law firm is not involved in the current case.

Crawford didn’t directly address a question from the AP about whether she would recuse herself from any case involving Act 10. But her campaign spokesperson, Sam Roecker, said Crawford “will make a decision at that time about whether she can be fair and impartial, based on the particular facts and parties.”

Roecker said Schimel’s immediate condemnation of the court’s ruling Monday “shows he has already prejudged this case.” Schimel didn’t respond to a request for comment on whether he would recuse himself from any case involving Act 10.

The appeal of Monday’s ruling striking down Act 10 would typically first be heard by a state appeals court — a process that could take months. But the public workers who sued could ask the state Supreme Court to take the case directly, which would make it possible for a ruling before the new justice is seated in August.

Crawford has been endorsed by the state teachers union, which was gutted after Act 10 became law, as well as the Wisconsin Democratic Party and all four of the current liberal justices on the court. In addition to suing to overturn the anti-union law, Crawford also previously represented Planned Parenthood in a case to expand Wisconsin abortion access.

Christina Brey, spokesperson for the statewide teachers union, the Wisconsin Education Association Council, said she couldn’t speculate about whether Crawford would hear a case challenging Act 10.

Brey said Crawford won the union’s endorsement because “we believe she is going to be the most dedicated and most impartial, constitution-believing judge to put on the Supreme Court.”

Schimel is endorsed by Republican Sen. Ron Johnson, all five of the state’s Republican congressmen, the conservative group Americans for Prosperity, and a host of law enforcement agencies and officials, including 50 county sheriffs.

If Crawford wins, liberal control of the court would be locked up until at least 2028, the next time a liberal justice is up for election.

Candidates have until Jan. 1 to enter the April 1 race. The winner will serve a 10-year term.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup. This story is published in partnership with The Associated Press.

Union rights take center stage in high-stakes Wisconsin Supreme Court race is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.