OrrrcEor tre

II0

Cr,nRK

\ilISCONIN COURT OF APPEAL$

Enst lvf{ Srntrur Srure 21"5 P.O. Box 1688 Mnsol.r, lMrscoNEIN 53701-1688
"H+iTffii?g%-$-o
rilcb Sio: www.wicourts.gov
Fscsimilc (608) 26?-0640

DISTRICT TV
.. .-,-' -'March 12, 2013
To:

Hon, Junn E. Colas Ci.rcuit Court Judge ?15 South Hamilton,8r.10, Rn. 7103 Madison, WI53703
Cado Esqueda lrk of Circuit Court Room 1000 215 South Hamilton IVladison, WI53703 Lestcr,4.. Fines Tamara Packard Susan M. Crawfod Cullen Westorr Pines & Bash LLP 122 W V/ashington Avc # 900 Madison, WI53703
Steven . Kilpatrick Assistant Anorney General P. O. Box 7857 Madison, WIfi707-7857 Steven P. Means

Michael F. Scrcnock Michanl Bcst & Fredrich LLP P.O. Box 1806 Madiso, WI53701-1806

Kevin M. Bt. John

-Wisconsn Departrncnt of Justice P.O. Box 7857

Madison, \YI53707 Daniel J, Borowski Phillips Borowski, S,C. I 0 140 N. Fort lVashington Rd" Mequon, WI53092
Brue N. Cameron

hofessor of lbor Law Univers School of t aw Robcttsou Hll #353 I 000 Regeut Univcrs'ity Drive Virginia Beafih, VA 23464
Reed lrson

Regent

Assistant Attorney General P.O, Box 7857 Madison, WI5370?-?857

Joseph Louis Olson

Milton L. Chappell Natioal Rightto Work Legal Defense Foundation Inc. 8001 Braddock Roa4 Suitc 600 Springfield, VA 22160
Kathlcan Meter Lounsbury Bruce F. Ehlke Ehlke, Bero-Lehmm& Lounsbury SC 650? trand Teton Plz Ste 202 Madisort, WI 53719-1 047 Richard M. Esenberg Wisconsln Institrte for Law & Liberry ll39 E. Ituapp Strect Milwaukee, WI 53202 -2828

'Michacl Bcst &, Friedch LLP I00 E. Wisconsin Ay., Str. 3300 Milwaukee, VI 532024124 M. Nicol Padway Padway & Padway, Ltd. 633 r[Y. WisconinAvc., #1900 Milwarkee, \ryI 53203- I 908

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.AarcnN. Halstead Hawks Quindel, S.C. P.O. Box 2155 Madison V/I53701-2155 Babar2. Quindel Tinothy E. Hawks Hawks Quindel, S.C. P.O. Box 142 Milwaukee, rWI 5320 l-0442'

Michael P. May City Confy Building Room 401 210 Martiu LutherKing, Jr, Blvd, Madison, WI53703-3345
Stuart S. Mukamal Asst. CiWAttorney 200 E. I{r/ells $t., #S00 Milwaukee, V/I53202

Kwt

C. Kobclt

TrlVisconsin Education

Asociation

P.O. Box 8003 Madison, WI5370E

Andrew T. Phillips Phillips Borowski, S,C. 10140 N, Port TVashingfon Rd. Mequon, VI53092
Mariannc G, Robbins Previant Goldbeig Uclafl, Grlz, Miller t555 N. RiveroonterDr., Ste."202 Milwaukee, WI53212'
John Wdter Strange Jr. r\sst. City Attomey Rm.'401 210 Mrtin Luthcr Kiog, Jr. BIvd. Madison, \VI 53703-3345

Rudoh M. Koryad Deputy City Attorney 200 E. Wells St., #800 Milwaukee, 14 53202-3 5 I 5
Peggy A. Lautcnschlager

Bauer& BachLLC 123 Min St Ste 300 Madison, WI53703

You ae hereby notified that the Court has entred the followirrg order:
2012P2067 Madisou Teahr$, Inc. v. Sctt \Valker (t.C. #i:011V1774)

Before Lundsten, P.J., Higginbotham and Blanchard, JJ.

Appellants Scott Walker, Jame Scofi, Judith Neumonn, and Rodney,Ph mov to stay
a circuit couft ordet that declaed unconsitutional ceftain portions of the Mruricipl Emplorment

Rclatons Act (*MERA," located at WIs. Stnr. $$ I I t;70 to I I L77) whilc an appeal from that

ordcr is pending. $pecifically, thc odcr at issue stnrck down provisions prohibiting collective bargaining with mrnicipalities o y subject other than total basc u/.ages; requiring a local
referendum to authorize negotiation of any increase in base wagcs excerding a cost-of-living increase; requirirrg mandatory anual recertifi.cation lections for unions; prohibting the forced

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No. 20l2AP?067

peymnt of dues from non-uniryme.rnber cmployees; nrohibit{nq payroll dcdustions for union

dues; and prohibiting the City

retirement system.

of Milwaukec from paying eurploycc

contributions

to

the

The appellants first sought relicf in thc circuit court, under the proccdures sct forth in
Wts. Srr. $ S0S.07(2)(a)3. and Rur,s 809.12. Iile therefore review th oircut court's decison

to deny a stay under the erroueous-exercis+of-discretion standard, rathe thau considcring the
mattsr de novo. ,$ee ,Sffe'y, Gudenschwnger, 191 Wis. 2d 431,43.940, 529 N.W.zd 225

(1p95). V/e will sustarn a discretionary decision

.so

long as thc circuit court "examined ttre

rclcvant facts, applicd a propu* ,tuoa*d of':*, anA, ttsing a dernonstrure mtionat process,
reachcd a conclusion that a reonabl judge could Eah." LiddIE v, LdIe,l40 Wis. 2d l3?,
136, 410 N.W.?d 196 (Ct. App.

i9S. For the rcasons

discrssed betow we conoludc that the

circuit court ated within its discretion in denying the stay. The ptoper standard of law for evaluatius a sty rcqucst. was st forttr by the supreme
oourt in Gudenschwager. A stay pending appeal is appropriae if the rrovirtg party;

(l)

makes a strong showng tlmt

it is likely to succeed on'

the merits ofthe appcal;

ineparablc iqiury;

(?) {ows ttrst, unless a stay is grantc{

it

r'itl suffer

(3) shows that intcrested paties;

(4)

and

no substantial harm will con:to other

.

shows tht a stay witt do uo trarur to the public interest.

Gudentehwager,lgl rtl/is. 2d at 440. These factors are irterrelated corrsiderations that mwt be
balanced. -ld,
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No. 20124F2067

The circuit court evaluated the appellauts' stay request in this. case by balancing thc factors st forth irt udenschwger) The circuit court concluded that the first factor, the likelihood of succcss on appeal, weigbed in favor of a stay, but tlrat this fflctor wus "outweighed
by the [appellanis'] failure 1o shuw neparable harm to thenr if sty is denied and by the harur to others ard to the publio if a stay is granted."
The appellants contcnd that thc circuit.court eruoneous xercised its discretion bsausc

its application of the Guenschwager factors was flawed in multiple respects as a matte,t of law.

They further ar$e tht,

if

'the circuit court had conectly interpreted and applicd the

Gudensthwager factors, the only reasonable xrcise of iscretion would have ben to grant their stay request.

S/s notc tht the way in which the appellants have structrued their argumcnts on appI
complicates ow rcview of the Guifunschwager factos. Rather than discussirrg, individually, the nature of cach factor aud its application to thc facts of this ce, the appellants present purely

legal argumnts-that is, arguments that do not depend on t*re panicular tahrte or particrrlar facts at issue her+as to how the fastors should be interpreted and .thcn, essentially, luurp
together a discussion of harus tlat the appellants rgue will occur if a sfay is not granted.

We recogniee that the interests t

sta"lt

in a partioulflr

ras do

not always fit squarely

within one of the

corrtain

enumerate

d, Gudenschwager facors. Indeed, Gudtnsthwager itsclf did not

the

a neatly individualizcd discussion of each of thc suy fnctors. For example,

Gudenschwager conrt sms to discuss the risk that a pnon will commit futrrrc acts of sexrul

violence ar both a ilrflttr of ineparabte

injrrf

under factor two arrd as a mttff of potential harm

to the public undff factor foru. ,See if,- at 44143,

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No, ?0124P2067

As a prantical matter,

the'rq we acknowldSe that the balancing tst must be flexiblc

enough to accommodate somc variation in the ways n which a particular harut may be analyzed undcr onc or more of the final.three factors. r/e emphasiee, however, that flexibility as to wtuch

factor o facilors pply to a particular harn does not alter the appellants' overall burden to
addess all factors r sorne lannr and, ultimately, to demonshate that the fatos favoring a stay

outweigh the factors disfavodng a stay.

Accordingly, we will stucfir this order around the appellants' atguments!

those argrments do uot precisely match'up wtb the list of factos

evtt. though

n Ga,cttschwgeh

Wb \,vill,

however, note throughout our discssio:r points at wich thc appellanrs' framing of a particular argumcnt ignorcs rclcvant considerations or othetr,ise faits to satisfy their bwdeu of proof.

Scpe

af

Regured Examination into I"ikelihooil

of

Stcs

n,{ppel'

The first factor looks ate likelihoodof.ncccss pn app1l. The appelluntsmustmak "a strong showing that fthey are] likely to succecd on the.merits of the appeal.-

airt40. "[TJhc

probabil of

success tat must be demous'trtd

is

furversely proportionat

to the amouut of

imeparable injtrry the any

ca,$ c

plaintiffwill srfler qbsenrt.the $hy," but the probaility of succsss must ia

more thana "er'possibilty,"'

f $441.

The appellant$' first legal argrlnent is that the circuit corut misapplied this'stay faotor by

relytug errtirely on the legal presumptiou of constitutionality affordcd to statrrtcs to determine

that thc appellants had shovn abasic liketihood of success on appeal, withoutdirectly addressing

the specific claims of euor the appellants proposed to raisc on appeal. Thcy srguc that the
inversety proportional relationship described

Gudenschwngerbt\ryen the showing needed on

the fitst and second factors requires a cicuit corrrt to closcly evaluate ttre meits of a movant's

l
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No, 20124P2067

appellte issues in ordet to dctermine whsre the iszus fall on a continuum of likely $uccss.
Stated auother vny; the appellants oonteud that the circuit

cout dcprived them of the benefit that

somes ftom showing an especially high likelihood of success on appeal-:'.e., the benefit that

they are required ody to make a lessm showing of ineparuble harm-by stopping its analysis

after conoluding that the appellants had satisfied the basic ttueshold of more thar a ere
possibility of sucess. The respondents, on the othsr hand, take fhe positon that it would be improper for the

circuit court or this court to cngage in a substantive evaluation of the mcrits of the appeal. Th
respondents cnectly Foirrt out that, irr a simitar situation, lhe GEwchwagrcourt itself did

just what the cicuit oorrrt did hcre*the Gudenschwger court simply epplied the prestmrption,
hroadly dete,lmined that the appcllants had a likelihood of success on appeal, and movcd orr to consider the other factors. See d. al. Ml-44. Accordingly; the respondents have declined to provide a substantive discussion of thc issucs on appeal. Although w agxe with the gcneral proposition that the requued showing for.irreparable hatm is inversely proportional to the strengfh of a movant's showing regarding the tikelihood
sussess on appeal, we corrclude that,

of
a

irl a case

presearhlrg a novel constitutional cballeugc

to

recerrtly erracted statute like the one before rs, the proper mtlrse is thc one followed by the

circuit court here and the suprme court

in

Gudenschwuger. Tht is, a court should apply the

presrunption of constitutionlity and conclude that the appellants bave mnde a showing thalthcV e likely to succeed on the merits of the appeal, witllout attempting to more Frcissly identify

the appellants' likelihood of success, In reaching this conclrsiorr, we rake the following
observations

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No. ?0124P2067

ur

experience with

clrilninig the mtits of appellatc

issues.

in the otext of

stay

motions tells us tlat cases gencrally fall into one ofthree categoties: (1) "near frivolous" appeals

in whioh the appellant obviously has virtually no chance of succes on appeal; (?) "rrear cefiflil

to win" appeals in which the appcllant obviously h a ve.ry high chancc of succcss on appeal;
*Iniddle grourrd" appeals in which and (3)

it is difflrcult or impractical to ptedidrhe outcomc.

.As

w understand the first factor,

ild

s \v

will

discuss firther betow, the presumed

constitutiouality of stotutes automatically puts the prcsent case, at a r,rfurimum, in the last of
these, the middle-ground ctegCIry.

The appe.llants have atemped to perzuade us that thi,q case falb into tlre ncar-cettain-to-

win category, an appeal tht we can determine from thcir motion has a very high likelihood of
sus$ ol f,ppal. The appellants assert thst the dcqision under review is

"irt direc conflict wittr

the settled law tlrt employees have ro constrtutional guarantee to any level or tpe of collective

bargainiflg:' and that the circuit court placed primary reliance o Ee that has no application

here. It is hrd o assess the accuracy of.these.assertions. The

.:

issues pre,sented here ae

complex, and it is not readily apparcnt that thc authority citd hy thc appellants is either on point or controlling. Siniilady,
court. placed substantial reliancc

dir*tly

it is not readily

apparent that the Gqse ol which the circuit

is inappositc. Ard,

it is espeoially: difcult to sssess the

complex issues raisd in the bsence of adversaial briefing. Thus, we are not persuaded that this

is a near-sertain-to'win situation or tht the circuit cowt was'required to conclude that the
appcllants had such a hish likelihood of success on appeal as to lower,thc nesessary showing on
any ofthe three harm factors.

We concludc, instead that this is a middle-ground case. The presunrption apptied by the

circuil ourt here yields a "likelihood of

suess,"

dcfined elswhere
:

tn

Gudenschwager as

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No. 20134F2067

"ffiore than thc mre 'possibility"' of succcss. I. al

suc.ess,

4/l; Morc thy a mre possibility of

falls for
trruo rasorul.

broadly speaking, dcfines orr middle-ground category. It woul.d not b nppropriate for

us to more

spccific*lly identiff where in the middle this

case

F'irst, the appellarrts effectivcly invite rs to..tcntatively decide tlre mcrits of the appeal,

thus giving the appearance that we have prejudged thc appcal. The appellants provide lengtly ard detailed arglrments

in their motior qnd, if

rrys $er

to

addess thesc arguments

in a

meaningful vvrry, we would necessarily need to identifu legal principles arrd authority and
indicate ow thinking on the mcrits. This seems to nm sfoul of thc nderschwger court's cenrrn with not appearing to havc prcjudged the merits.

T\t

Guenschwfrger corrt sfrcssed

suss

that its conclusion that the State had madg'a showing of a likelihood of

on appeal

"should iu uo way be construed to mean ttrat wc have prejudged thc merits." Id. at 441 n.2.
Second, we gre vuith th respondcnts thaq in a similar ciroumstgnce, the supremc court

itself dslined. to be more specfic. The topic at issua in Gudewchwger w

the

odshtution.I of riliscoruirr's sexual predatorlaw After explaining tbt the challcnged sexunl

predator law would enjoy

prcsurrptio

of constitntiouality, the

Gadensehwager court

concluded that the Statc hnd madc a strg showing that it was likcly to succeed on the merits

of

its appeal,
chances

Id. at441. The Gudenschwagetcourt did not more specifically dcternrina thc $tte's

of success on appeal with regard to bpecific legal issups. That is, the Gaenschwuger

corrt did no more than to make a broad+tokcs finding.that the State's chartces of suocess on
:

appeal felt in to what w havc cha^rcterizd as a middle-ground category. Thu$, in a middle.

ground ce like this, wc havc no guidance on how we might go about identifying more
specifically the chanes of success without venturing too deply into the medts and prejudging a
cas.

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No. 20I24P2067

Our discwsion hre focuseE ofl orrr rol and not the circurt ourt's analysis of the
likelihood of success'faotor, but the nct result is the same. tike thc circuit cout and like the suprern conrt

in

Gudenschwager,

we dp no mor than apply the

presumption

sf

constitutionality of regulady enacted $tatutes.and weigh tlus factor ir favor of the appellants.
Since we decline to addrcss the appellants'

f,ore specifrc

argunreir-ts tegardiug the merits of their

appal, \ry move on to their next claint of legal enor, which reltcs to the:second stay factor,

Proaf Reqaedto Show Iwryarable Injary Rultingtromthe Vodng of Legfulaton

The second stay factor addresses whether thc moviug party wIl suffer ineparable

itjttty

if

a stay is not gruted. Gudenschwager diects that an alleged ineparabte lqitry q'must be iu tcrms of its substantiality, the likclihood of its occuumce,. and thc proof providcd

eialuated

by the movant."

Id. at44l-42,

The appellants contend tlat thcy, as state actors, will b ineparably hrmed as a mattcr

of

law

if thc statutory provisions

at isuc r not in force peuding thc appeal. Speciflrcally, they

assrt that the

sircuit corrrt ened in failing to sck[owlcdge that the State "s,rffers ineparable

injury whenever ralidly enacted legislation is declared void." The appellants flrther contend

tlt such rnjury. is always substantial, "self-provirg,"

rrd. 100%

likely to occut. That is to

say,

thc appallants claim that, any time a circuit court decision preve,nts the eforccment of a statute,
there is, by dcfinition, irreparablc injury of zuch dcgree as to rcliwe a govcrnrnent appellant the bwden of making any additional showing on tlus factor. We disagree.

of

tffe begin by noting tht the appellants' argument conflates tlvo

irreparablc injrry inquiry:

spratc aspccts

of the

(l)

wtrcther the alleged injrry to the ftovnt sould bc cornpensated or

othonrise remedied and,

if

L (2) how substantial the injury.woutd be in rclation

to

any. other

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No. 20124P2067

alleged harms being considcred rmdpr the tast t\/o factor$

if

a stay /er gnted. .9ee Bl,lcn?

Lw DrcuoNARy 856 (gt ed. 2009) (tctm "irrcparable injury" gencrally means that monetary
lamgs would provide an inadequate remedy), Even accpting the appellanls' first proposition

that a denial of the

will of the people as cxpresscd by their

clected representatives (i,e., a

reprsentational injury) is an intangiblc hsm that.cannot be adequately compensatcd by moily

dirmrgcs and is thus always '?irrprbl;t' it'tlos

ot'f'olliiw tli the dee of sirch hamr is

always uniformly substantial. To the contrary, we are persuaded that the degree of ineparable

.:

injrrry resultiug ftom void,ing legislation raries widety depending onthe legislation at issue.

Our conclusion is zupported bytwo obscwations, First, there is no reasofl to suppose that Gudenschwager's direction that an alleged ineparable injury must be cvaluted interms of the

proof submtted on its subshntiality and probability does not apply when tegislation is declarcd
rnconstihtional. ,{,frer all, a declarahon that a stgtute was unconstihrtional was thc vcry topic at
issue

Gtdlenschwrrger.
it is self-evidcnt that not all

'

Seond,

stahrtes arc reated equal in t$ns of the breadth

of

thefu application or thc depth of thcir impact. $uppose, for example, th state legislatue wcre to

amend WIs. Sr,r. $ 1.10(3)( to rrrake the spanovr,. rather than the ro-bin, the state bird.
Suppose firther that a circuit court struck down the legislation as unconstitutional bascd on some

alleged dcficicucy in the legislative procss, and'the Btate moved to stay the circuit court's

decision.

It cannot be the csse that a ourt oonsiderirrg *h*ther to grsnt a sty in those
afford exactly the
same weight to the appellants'

cicr.mstnces would

cla of ineparable

harm

that a court would

if it

stnrck down, for c:rnmple,,a statutc with the cffcctthat all high,ray

nstruction in the stat must immcdiately com to a halt. Thc point of this example is not that

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No. 20l2AP?067

we hve low impact statutes at issue here; plaiuly we do

appellants'per se approach to this factor is unsorurd.

not.

Rther,

ou point is that the

Rather than a per se hnn rule, a proper analysis of the ranrifications of staying or not stayrng a decision declaring statutory provisions uncoustitutional requrres an analysis that looks at thc partcular tegislation at issuc. The appellants do.not challenge the circuit sourt'$ finding

tlrat they faited to offer any facts or gumnt as t the stated Gudenschwagu criteria of
zubstantiality tlrrt war applicable to their claim of.an irrparable injruy to the rpresenttionl
interests of the State. rMe conslude, there.fore, that the circuit orJrt did not

affi

an iruprope,t

standard

of lnw or otherwsc

crroncor.sly cxcrcise its .discretion

in'its
:

a$$essrfilt

of that

particular claim of ineparable harm mad by the

appellants.

We pausc here to note that the appellans madc a decision to diecus other potential hrs tht might ocrr in th abseuc.sf-a shy,. such as sttewide onfusion among municl
employers, only as part of their argumflts rclatirig to the last two facfors, without addressing
zuch harms in the context of the second irreparable injury factor. Logically speaking, we believe

it would make mor sfi$e to address

irreparable injury that might result

togcther urder thc second factor all of the cl+ims

of

if

stay. were

not grantd (,e., the main hilm factors

waighing in favor of a stay), so that such hrri cculd mor clearly bc balanced agaiust all of the allegations

of

subatantial harm

to

othe,r interestcd parties rnder facto tre

if

a stay

wrc

imposed (i.e,, the. main harm factors weighing agist a stay). Howver, as w. stad abovc, this

ordcr is organized aound the specific argumcnts made

the appellants stay motion. S/e wll,

thetefore, discws other potential irreparable injruies that might result if a stay wer not granted
as those claims have been framed

by the

appellants.
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D etn

ilon oJ Intere$ed Pa ies

Regarding the framework of the stfly analysis, the appcllants ncxt asscrt tht th thrd and

for.uth stay factors should. be considered together in this cas iu light of thc."multitude"

of

intetested parties and public interes that oould be affccted by the decision ueth+r to stay the

cottt's ordcr. This assertipn ties directly to another argumeut thc appellants make, that

the

circuit court erred irr limiting its discrssion of other interested partics to the rnrions that brought this suit. The appellants corrtend. ftat thc circuit court should bave exparrded its definition of
interested parties
thousands of

to include the "litcrally thousands of municipal

employers and tens

of

mmicipal employces" affected by the challcnged provisions of MERA, and points

out that the intcrests of those employers and employccs re not unifonn

lVe

age

tlrat the interests of municipal employcrs and employess-and, for that mttr,

members of the puhlic gerrerally-are not mouolithic arrd could be considered on either side

of

the stay ecuatin. Ve have already explained, howcvcr, that the crrx of the bdurcing test is to

gh against those factorl opposing a

stay. Therefore, it,is a di$inction wilhout

difflerence whethc

the circuit cowt considercd thc

interests of those municipal employets and eurployecs who support the challenged provisions

of

MERA urdcr the rubric of "other intercstcd parties," or as prt of its consideration of the public interest. Wc are satisfied from orr own review of the circuit court's desision that the court did
consider allcgcd harms to the ilrterests of municipal employes and employecs who support the

challenged provisions

of MERA as prt of its

discussion

of whcther the

appellants had

demousFated that there was widespread coufusion resulting from the oircuit cor.ut's order.

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No. 20124P206?

wefi it .eitoial

lif

it"tu n:t g o,,tg St ate wde Confasbn

The appellsts' hallenge to the way tlre circuit court categorized the interest$ of
mnnicipal employers and other+-whom thc appellurts claim would be hffined by the absencc
a
t

of

stay-fails to askoowledge that the circuit cotxt did, in fact,

' _-_11"

addcss thsse conrns in another

portiou of its decison. That is, the circuit court did not

ore

claimed harm to municipal

employers and otlrers, but athcr gavc little weight to the evidence the appellants offered on this

topic.

Although the appellants did not prwide us with copree of thcir affidavits with their stay rnatarials,

wc surrnise from the parties' arguments and the cjrcuit.court's order that thc

allegations thcrcirq madc by several officials reprcscnting nonparty public employers, are as

follows: (l) thErc is wideqpread confusion among municipal employers

abort the statewide

effect of the circuit court's order on such topics the scope of issuss that must be bganed

with publc unions, the status of bargaining representative tbt werc deccrtifi.ed prrsuant to
MERA prior to the effective date of the circuit otut's decision, and the continuing validity of
rrilatcrel chauges implcmented by municipal employr (?) this confwioq will bave a negativo

impact on the municipal budgeting process; and (3) the confision could lcad to litigation.

First, aszuming that confision ovcr whcther th crcuit court's decision has statewide binding effect is a significant potential issue, w note ttrat thc appcllants.takc thc position that it olcarly does not have statewide effect.

If

the rcach of the circuit court's order is as plainly

becerse .therc

limited as the appellants rgu, the appallants bve no reed for a stay

is

no

underlyiug cause for confision on the part of nonparty muuicipal employers. The circuit court
essentially made this point when

it noted that it did not find the affidavits persuasive, in paft

13

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No. 2012F2067

hecEuse thc affinuts did not stte that they had actuolly read the

decisioq consulted the Attorney

General

or separate legal counsel, or

taken any othet steps

to allay their

couftsiort or

uncertainty.l to why a stay ot the

Secon{ thc appcllants have failed to present a ogent explanation

as

absence of a stay would affect the likelihood of the hatms that the appellants onteud f{ow from the alleged confiision.

The appellants

assert$g,"q$lig-:er-wetherttre
"
oug*tiuu

crcuit corrt's decsion is bindrng

statc-widFwill

bve

puci

o+ m* municipal budgcting process. Wc understsnd tho

appellants to be arguiug that municipal employms aross the state might spend mor as a result

of engaging in contract negotiations based on confrsion over whether they are uow required to f!otiate

for wages in.excs.s=gf ryrl::JrylS

increases .1qd.othu items that

wold have an

cffcct on the municipalrty's budget. Flowevcr, the appellants do not explain why the dsk flowing from this alleged corrfision does not cut equally both ways. It may be that some cmploycts will
choose to play

it "safc" and cngage

il

bargaining to protect thmselves if the legislation at,issue

here is ultimately declared rnconstitutional, Ad,

appellants acknowledge

if

employem choose this toute, s the

in supplemurtal

briefing, thse would bc no legal impediment to

In their motion for a stay, the appellants iudicated tha the cicuit corut's decision was not binding state-wide. trn response t our request for supplemental briefing the appcllants expanded on this topio and moro forcefully argued that thc circuit corrt's decision is not binding stste*wide on nonparties.

wide. But we rojt out of hand tho proposition that thc circuit court's decisiorr has the

We acknowlodgo that the respondent'rgu that tlre circuit court's deeision hc,tc ir birtdirtg statesarne effcot as a published opinion of this court or thc suprcmo court. mors intercsting iesue is whcthor, if a union zuos, a different circuit corut might exercise its discretion to apply the dosino of iszuc preolusion or a sirnilar doctine nnd, therehy, cffective choosc to follow the cirouit cort'$ deoision harc. So fat as wo can tcll; differcnt courts might mako different decisions on tht topic and, in any evenL this is not the sort of
sttewide effect that would

justi

a stay order

inthis csse.

l4

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No. 20124F2067

ngotiating conilitionl oontrrct orftt6activ-'i{agS-th'at Tke-iirto account the'uncertain legal

status of the challenged $tfltrltory provisions, or to attemptingto recoup ,ny ove{payments

if Act

l0 is ultimately upheld.

Such action would reducc the risk of inpambleharm.

If, ou the other hild, this oonfi.usion

^. t!r+rr

leads municipal cmploycrs to decline to bargaL

zuch an effect is not hrm, in the appllnts' view, but ralher the proper cows. But this action also cffies with

it

some

risks. If these employers wrongly predict tlre outcome of the

ap'pellate

proccedings regardirrg the merits, tlrey raay irrcrrr litigation costs and, ultimately, be required to

compersate union members for losses owrng to the cmploycrs' compliance with chauges ilt
'

MERA tliat are later deemed

uiiconsttulional.
us tbt

In surn, thc appcllants' argumnts do not persuade

confiuion<vr

wherther th

circuit court's decision is binding stte-wide-will have a rlegativ,impact on the municipal

budgetiug pross. Based on the infonnation before us, it appears thaf budgeting risk for public employers goes both \ryHys. If therc is a more sophisticated anais tht makcs clcar that the dsk

of bargaining (taking into account tlre parties' apparcnt agrccrncnt that the unccrtain legal status

of the challenged statutory provisions an affct the ntue of the baryaining itself and, for
example, result in conditioual agreements) is substantially greater than the risk of not bargaining
suh

fiI argumcnt is notbefore

us.

The appellarts assert that conflrsiou<ver whethcr the circuit court' decision here is binding state-wide-will lead to litigation. In this regard, the appellants uc apparcntly talking
about sce,arios

in which public cmployers decline to brgin on the topics covered by the

ohalleugcd MRA provisions and are then sued by union members for a failure to bargain in good

faith. On this topic, thc appellants

have not explained why a stay or the absence

of a stay

l5

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No^ 20I2,{F206?

would affect such litigtion. rWhether a $tay is or is not ganteq nothisg brought to orrr attntion

by the appellants prohibits nonparty unions ftom suing municipal employers who dccline to
bargain on topics covered f

t* nqy'ryFR prgvillory. The imposition of a stay would not

prevent srch rnions from filiug suit. Indeed, because the impositiori of a $ty does not resolvc

the uudering lcgal iszus,

it is hard p imaginc why the imposition of a stay would have any

effect on whether nonparty unous filed suit. Untit the Wisoonsin Supre,mc Court finally rcsolvss the issues, either by issuing a definite ruling on the merits oi by issuing an ordcr declining'o
revicu, a msrits decison ofthis courL it seems that ongoing litigation is ineviable.

Irr sutr, the appellants have not persundcd us that tlre ciicuit court

\'as required

to givc

ny ore weight than it did to their affidaviu alleging statewide confision. It appears to us that

the sort of confisiorr the aplell*rts highlthr i$'iiot''iroiict of thc circuit court's decision, but rathsr a product of ground-breaking legislatiou that is now subject to constitutionnl challcnges.

As we have explained, as best we an discem from thc materials and arguments prescntcd to us"

it

appears that thc poteutial for litiga1iot o this topic

will not

be lesseued until the merits of the

constitutional issues are finally resolved by action of oru flrprmc corut. ,4ssumptinn Anilerinfr Clrrrs of Subsnnfial Hrm
Thc appcllants' final argument is thatthe chcuit coutt cned by "assuming the correchcss

of its deision" when considering under the third and fourth factors whethff any sub*antial harm
might result to other intcrested parties or the public if a stay were granted:

ft*

is, the appcllants

rgua tht the premisc that rurion mcmbers would suffer any hsnn-*urhcthcr fiscal in natrre or

an intangible violation of their corutitutional rights-rests upon r assurnption tbat ttre ciri1

ld

60./T0'd

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No. ?012^14067

court conctly ruled the statute unconstitutioffil,

trrd

that suoh an assumptiou *essentially

aviscerated the presumption that the appellants are likdly to sucsd on appeal."

tWe conclude tht tbis arg,ument is. bsed

Gadenschwager test

on a

misapprehension

of how the

works. It is implicit in the s$ond, thid, and fortrth

Gu.denschwager

factors tht a court is to balance any harm tfat might result in the absence of a stay, in the event

tnt the

decion on appeal s ultimately reversed, against harm that

ight result from the

imposition of a sta in the event.that the decson on appeal is ultimately afiirmed. This is thc only logical way to read the fastors, See Gailenschrl,t,l9l Wis. 2d at 440. Couary to the appellants' assrtion, making an ssumption uuder the third or fourth factor that thc decision on appeal will bc affrrmed doc not conffict with a determination made
unde'r the

first factor tht a movant has demonsftsted a likelhood of success on appeal. As we

have explained above, a movant car establish a likelihood of success on appeal by making a showing that there is "morc

tU* * mere 'possibility"'that

a1

ppel

will succeed. The first it

factor docs not require a finely calibrated evaluation of the merits, or even a determination that

is more likely than not that an ppel would succeed. j\nd, as wc hve xptin{ w are not
pcrzuadad tht lttis case falls into that catcgory of ces in which
are nearly ccrtain to

it is apparent tht the appellants

win on appeal.

Therefore, v/e se nothing iuconsistnt about assuming that the:circuit corxt's decision

wll b afifirmed when cor:sidering the potentiat harm to other parties if

a stay wer gnntcd, and

weighing that against the harm tbt could result in the abscncc of a stay assuming that thc circuit

court's decisioa were reversed. Rather, we believe those ae precisely the competing
possibilities that ac zupposed to be balanccd in considering whcthr to grant a stay.

t7

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6T0'd

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No.

?01?,FX067

Having rejected the appeltanTs' legal challenge to how the third and fourth fator$ shottld
be interpreted in relation to thc first factor, wc reiterate that it was the appellants' burden nder tte third ard fourth factors to show that no intertsted parties would
b.

hsnncd

if

a stay wcre

granted. The appeltants did not develop, either before the circuit tourt or this cott, any fact"
based argumcnt as to why

publicly *rnployed urrion mernbes would nt b$ harrncd if a sty wff

grantd and they weic thcreby prohibited ftory bargaining

for be+cfits, limted in

according

their
the

negotiations

for wage increases, nd required to recertify their urions

to

challenged provisions. Thereforc, ttre cirflrit court did not apply an improper staudad of law or otherwise erroncously exercise its discretiou when it determined that the appellants had fatld to
meet their burdcn of showing a lack of substntial hErm to othcr intcrestd partics or thc public.

Rather, we conlud that the circuit cowt reassably cousidered, as weghiug against a

stay, the proposition that, evc,lr with

a stay imposed, municipal

employers could not be

compelled to $Ent wagc increases higher than thc cost of living, whereas, in the absence of a

stay, public employees would be flatly prohibited from bargaining on benefits or work
condltisns, and would bc limited

to ost-of-living wage increases. I U*.u*, the

se.e

uttirnate

lvighiry of suoh factors was within the ciruitcorrt's discrction, we circuit court's decision that a stay ws not warranted.

no'b$is to set aside the

IT IS ORERED that the motion for rclicfpending appcat is denicd.

an

Fremgen

CIerk af C aar t f ,{ppeals

l8

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