MTI v. Walker: Order Denying Stay

7/29/2019 MTI v. Walker: Order Denying Stay

1/18

OrrrcEor tre Cr,nRK\ilISCONIN COURT OF APPEAL$I I 0 Enst lvf{ Srntrur Srure 21"5P.O. Box 1688Mnsol.r, lMrscoNEIN 53701-1688

"H+iTffii?g%-$-oFscsimilc (608) 26?-0640rilcb Sio: www.wicourts.govDISTRICT TV.. .-,-' -'March 12, 2013To: Hon, Junn E. ColasCi.rcuit Court Judge?15 South Hamilton,8r.10, Rn. 7103

Madison, WI53703Cado Esquedalrk of Circuit CourtRoom 1000215 South HamiltonIVladison, WI53703Lestcr,4.. FinesTamara PackardSusan M. CrawfodCullen Westorr Pines & Bash LLP122 W V/ashington Avc # 900Madison, WI53703Steven . KilpatrickAssistant Anorney GeneralP. O. Box 7857Madison, WIfi707-7857Steven P. MeansAssistant Attorney GeneralP.O, Box 7857Madison, WI5370?-?857Joseph Louis Olson'Michacl Bcst &, Friedch LLPI00 E. Wisconsin Ay., Str. 3300Milwaukee, VI 532024124M. Nicol PadwayPadway & Padway, Ltd.633 r[Y. WisconinAvc., #1900Milwarkee, \ryI 53203- I 908

Michael F. ScrcnockMichanl Bcst & Fredrich LLPP.O. Box 1806Madiso, WI53701-1806Kevin M. Bt. John-Wisconsn Departrncnt of JusticeP.O. Box 7857Madison, \YI53707Daniel J, BorowskiPhillips Borowski, S,C.I 0 140 N. Fort lVashington Rd"Mequon, WI53092Brue N. CameronReed lrson hofessor of lbor LawRegent Univers School of t awRobcttsou Hll #353I 000 Regeut Univcrs'ity DriveVirginia Beafih, VA 23464Milton L. ChappellNatioal Rightto Work Legal DefenseFoundation Inc.8001 Braddock Roa4 Suitc 600Springfield, VA 22160Kathlcan Meter LounsburyBruce F. EhlkeEhlke, Bero-Lehmm& Lounsbury SC650? trand Teton Plz Ste 202Madisort, WI 53719-1 047Richard M. EsenbergWisconsln Institrte for Law & Liberryll39 E. Ituapp StrectMilwaukee, WI 53202 -2828

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2/18

.AarcnN. HalsteadHawks Quindel, S.C.P.O. Box 2155Madison V/I53701-2155Babar2. QuindelTinothy E. HawksHawks Quindel, S.C.P.O. Box 142Milwaukee, rWI 5320 l-0442'Kwt C. KobcltTrlVisconsin Education AsociationP.O. Box 8003Madison, WI5370ERudoh M. KoryadDeputy City Attorney200 E. Wells St., #800Milwaukee, 14 53202-3 5 I 5

Michael P. MayCity Confy Building Room 401210 Martiu LutherKing, Jr, Blvd,Madison, WI53703-3345Stuart S. MukamalAsst. CiWAttorney200 E. I{r/ells $t., #S00Milwaukee, V/I53202Andrew T. PhillipsPhillips Borowski, S,C.10140 N, Port TVashingfon Rd.Mequon, VI53092Mariannc G, RobbinsPreviant Goldbeig Uclafl, Grlz, Millert555 N. RiveroonterDr., Ste."202Milwaukee, WI53212'John Wdter Strange Jr.r\sst. City AttomeyRm.'401210 Mrtin Luthcr Kiog, Jr. BIvd.Madison, \VI 53703-3345

Peggy A. LautcnschlagerBauer& BachLLC123 Min St Ste 300Madison, WI53703You 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 EmplormentRclatons Act (*MERA," located at WIs. Stnr. $$ I I t;70 to I I L77) whilc an appeal from thatordcr is pending. $pecifically, thc odcr at issue stnrck down provisions prohibiting collectivebargaining with mrnicipalities o y subject other than total basc u/.ages; requiring a localreferendum to authorize negotiation of any increase in base wagcs excerding a cost-of-livingincrease; requirirrg mandatory anual recertifi.cation lections for unions; prohibting the forced

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3/18

No. 20l2AP?067

peymnt of dues from non-uniryme.rnber cmployees; nrohibit{nq payroll dcdustions for uniondues; and prohibiting the City of Milwaukec from paying eurploycc contributions to theretirement system.

The appellants first sought relicf in thc circuit court, under the proccdures sct forth inWts. Srr. $ S0S.07(2)(a)3. and Rur,s 809.12. Iile therefore review th oircut court's decisonto deny a stay under the erroueous-exercis+of-discretion standard, rathe thau considcring themattsr 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 ttrerclcvant 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 thecircuit court ated within its discretion in denying the stay.

The ptoper standard of law for evaluatius a sty rcqucst. was st forttr by the supremeoourt 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;(?) {ows ttrst, unless a stay is grantc{ it r'itl suffer

ineparablc iqiury;(3) shows that no substantial harm will con:to otherintcrested paties; and .(4) 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 bebalanced. -ld,

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4/18

No. 20124F2067

The circuit court evaluated the appellauts' stay request in this. case by balancing thcfactors st forth irt udenschwger) The circuit court concluded that the first factor, thelikelihood of succcss on appeal, weigbed in favor of a stay, but tlrat this fflctor wus "outweighedby the [appellanis'] failure 1o shuw neparable harm to thenr if sty is denied and by the harurto others ard to the publio if a stay is granted."

The appellants contcnd that thc circuit.court eruoneous xercised its discretion bsauscits 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 theGudensthwager factors, the only reasonable xrcise of iscretion would have ben to granttheir stay request.

S/s notc tht the way in which the appellants have structrued their argumcnts on appIcomplicates ow rcview of the Guifunschwager factos. Rather than discussirrg, individually, thenature of cach factor aud its application to thc facts of this ce, the appellants present purelylegal argumnts-that is, arguments that do not depend on t*re panicular tahrte or particrrlarfacts at issue her+as to how the fastors should be interpreted and .thcn, essentially, luurptogether 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 squarelywithin one of the enumerate d, Gudenschwager facors. Indeed, Gudtnsthwager itsclf did notcorrtain a neatly individualizcd discussion of each of thc suy fnctors. For example, theGudenschwager conrt sms to discuss the risk that a pnon will commit futrrrc acts of sexrulviolence ar both a ilrflttr of ineparabte injrrf under factor two arrd as a mttff of potential harmto the public undff factor foru. ,See if,- at 44143,

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5/18

No, ?0124P2067

As a prantical matter, the'rq we acknowldSe that the balancing tst must be flexiblcenough to accommodate somc variation in the ways n which a particular harut may be analyzedundcr onc or more of the final.three factors. r/e emphasiee, however, that flexibility as to wtuchfactor o facilors pply to a particular harn does not alter the appellants' overall burden toaddess all factors r sorne lannr and, ultimately, to demonshate that the fatos favoring a stayoutweigh the factors disfavodng a stay.

Accordingly, we will stucfir this order around the appellants' atguments! evtt. thoughthose argrments do uot precisely match'up wtb the list of factos n Ga,cttschwgeh Wb \,vill,however, note throughout our discssio:r points at wich thc appellanrs' framing of a particularargumcnt 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.- I airt40. "[TJhcprobabil of success tat must be demous'trtd is furversely proportionat to the amouut ofimeparable injtrry the plaintiffwill srfler qbsenrt.the $hy," but the probaility of succsss must iaany ca,$ c more thana "er'possibilty,"' f $441.

The appellant$' first legal argrlnent is that the circuit corut misapplied this'stay faotor byrelytug errtirely on the legal presumptiou of constitutionality affordcd to statrrtcs to determinethat thc appellants had shovn abasic liketihood of success on appeal, withoutdirectly addressingthe specific claims of euor the appellants proposed to raisc on appeal. Thcy srguc that theinversety proportional relationship described n Gudenschwngerbt\ryen the showing needed onthe fitst and second factors requires a cicuit corrrt to closcly evaluate ttre meits of a movant's

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6/18

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 thatsomes ftom showing an especially high likelihood of success on appeal-:'.e., the benefit thatthey are required ody to make a lessm showing of ineparuble harm-by stopping its analysisafter conoluding that the appellants had satisfied the basic ttueshold of more thar a erepossibility of sucess.

The respondents, on the othsr hand, take fhe positon that it would be improper for thecircuit court or this court to cngage in a substantive evaluation of the mcrits of the appeal. Threspondents cnectly Foirrt out that, irr a simitar situation, lhe GEwchwagrcourt itself didjust 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 toconsider the other factors. See d. al. Ml-44. Accordingly; the respondents have declined toprovide a substantive discussion of thc issucs on appeal.

Although w agxe with the gcneral proposition that the requued showing for.irreparablehatm is inversely proportional to the strengfh of a movant's showing regarding the tikelihood ofsussess on appeal, we corrclude that, irl a case presearhlrg a novel constitutional cballeugc to arecerrtly erracted statute like the one before rs, the proper mtlrse is thc one followed by thecircuit court here and the suprme court in Gudenschwuger. Tht is, a court should apply thepresrunption of constitutionlity and conclude that the appellants bave mnde a showing thalthcVe likely to succeed on the merits of the appeal, witllout attempting to more Frcissly identifythe appellants' likelihood of success, In reaching this conclrsiorr, we rake the followingobservations

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7/18

No. ?0124P2067

ur experience with clrilninig the mtits of appellatc issues. in the otext of staymotions tells us tlat cases gencrally fall into one ofthree categoties: (1) "near frivolous" appealsin whioh the appellant obviously has virtually no chance of succes on appeal; (?) "rrear cefiflilto win" appeals in which the appcllant obviously h a ve.ry high chancc of succcss on appeal;and (3) *Iniddle grourrd" appeals in which it is difflrcult or impractical to ptedidrhe outcomc. .Asw understand the first factor, ild s \v will discuss firther betow, the presumedconstitutiouality of stotutes automatically puts the prcsent case, at a r,rfurimum, in the last ofthese, 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 ofsus$ ol f,ppal. The appellants assert thst the dcqision under review is "irt direc conflict wittrthe settled law tlrt employees have ro constrtutional guarantee to any level or tpe of collectivebargainiflg:' and that the circuit court placed primary reliance o Ee that has no applicationhere. 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 dir*tlyon point or controlling. Siniilady, it is not readily apparent that the Gqse ol which the circuitcourt. placed substantial reliancc is inappositc. Ard, it is espeoially: difcult to sssess thecomplex issues raisd in the bsence of adversaial briefing. Thus, we are not persuaded that thisis a near-sertain-to'win situation or tht the circuit cowt was'required to conclude that theappcllants had such a hish likelihood of success on appeal as to lower,thc nesessary showing onany ofthe three harm factors.

We concludc, instead that this is a middle-ground case. The presunrption apptied by thecircuil ourt here yields a "likelihood of suess," dcfined elswhere tn Gudenschwager as,7 :

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8/18

No. 20134F2067

"ffiore than thc mre 'possibility"' of succcss. I. al 4/l; Morc thy a mre possibility ofsuc.ess, broadly speaking, dcfines orr middle-ground category. It woul.d not b nppropriate forus to more spccific*lly identiff where in the middle this case falls for trruo rasorul.

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 lengtlyard detailed arglrments in their motior qnd, if rrys $er to addess thesc arguments in ameaningful vvrry, we would necessarily need to identifu legal principles arrd authority andindicate ow thinking on the mcrits. This seems to nm sfoul of thc nderschwger court'scenrrn with not appearing to havc prcjudged the merits. T\t Guenschwfrger corrt sfrcssedthat its conclusion that the State had madg'a showing of a likelihood of suss 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 courtitself dslined. to be more specfic. The topic at issua in Gudewchwger w theodshtution.I of riliscoruirr's sexual predatorlaw After explaining tbt the challcnged sexunlpredator law would enjoy a prcsurrptio of constitntiouality, the Gadensehwager courtconcluded that the Statc hnd madc a strg showing that it was likcly to succeed on the merits ofits appeal, Id. at441. The Gudenschwagetcourt did not more specifically dcternrina thc $tte'schances of success on appeal with regard to bpecific legal issups. That is, the Gaenschwugercorrt did no more than to make a broad+tokcs finding.that the State's chartces of suocess on

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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 morespecifically the chanes of success without venturing too deply into the medts and prejudging acas. I

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9/18

No. 20I24P2067

Our discwsion hre focuseE ofl orrr rol and not the circurt ourt's analysis of thelikelihood of success'faotor, but the nct result is the same. tike thc circuit cout and like thesuprern conrt in Gudenschwager, we dp no mor than apply the presumption sfconstitutionality 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 theirappal, \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 LegfulatonThe 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 beeialuated iu tcrms of its substantiality, the likclihood of its occuumce,. and thc proof providcdby the movant." Id. at44l-42,

The appellants contend tlat thcy, as state actors, will b ineparably hrmed as a mattcr oflaw if thc statutory provisions at isuc r not in force peuding thc appeal. Speciflrcally, theyassrt that the sircuit corrrt ened in failing to sck[owlcdge that the State "s,rffers ineparableinjury whenever ralidly enacted legislation is declared void." The appellants flrther contendtlt 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 ofthe bwden of making any additional showing on tlus factor. We disagree.

tffe begin by noting tht the appellants' argument conflates tlvo spratc aspccts of theirreparablc injrry inquiry: (l) wtrcther the alleged injrry to the ftovnt sould bc cornpensated orothonrise remedied and, if L (2) how substantial the injury.woutd be in rclation to any. otherI

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10/18

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 monetarylamgs would provide an inadequate remedy), Even accpting the appellanls' first propositionthat a denial of the will of the people as cxpresscd by their clected representatives (i,e., areprsentational injury) is an intangiblc hsm that.cannot be adequately compensatcd by moilydirmrgcs and is thus always '?irrprbl;t' it'tlos ot'f'olliiw tli the dee of sirch hamr isalways 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 thatGudenschwager's direction that an alleged ineparable injury must be cvaluted interms of theproof submtted on its subshntiality and probability does not apply when tegislation is declarcdrnconstihtional. ,{,frer all, a declarahon that a stgtute was unconstihrtional was thc vcry topic atissue n Gtdlenschwrrger. '

Seond, it is self-evidcnt that not all stahrtes arc reated equal in t$ns of the breadth ofthefu application or thc depth of thcir impact. $uppose, for example, th state legislatue wcre toamend 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 somealleged dcficicucy in the legislative procss, and'the Btate moved to stay the circuit court'sdecision. It cannot be the csse that a ourt oonsiderirrg *h*ther to grsnt a sty in thosecicr.mstnces would afford exactly the same weight to the appellants' cla of ineparable harmthat a court would if it stnrck down, for c:rnmple,,a statutc with the cffcctthat all high,raynstruction in the stat must immcdiately com to a halt. Thc point of this example is not that

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11/18

No. 20l2AP?067

we hve low impact statutes at issue here; plaiuly we do not. Rther, ou point is that theappellants'per se approach to this factor is unsorurd.

Rather than a per se hnn rule, a proper analysis of the ranrifications of staying or notstayrng a decision declaring statutory provisions uncoustitutional requrres an analysis that looksat thc partcular tegislation at issuc. The appellants do.not challenge the circuit sourt'$ findingtlrat they faited to offer any facts or gumnt as t the stated Gudenschwagu criteria ofzubstantiality tlrrt war applicable to their claim of.an irrparable injruy to the rpresenttionlinterests of the State. rMe conslude, there.fore, that the circuit orJrt did not affi an iruprope,tstandard of lnw or otherwsc crroncor.sly cxcrcise its .discretion in'its a$$essrfilt of thatparticular claim of ineparable harm mad by the appellants. :

We pausc here to note that the appellans madc a decision to diecus other potentialhrs tht might ocrr in th abseuc.sf-a shy,. such as sttewide onfusion among municlemployers, only as part of their argumflts rclatirig to the last two facfors, without addressingzuch harms in the context of the second irreparable injury factor. Logically speaking, we believeit would make mor sfi$e to address togcther urder thc second factor all of the cl+ims ofirreparable injury that might result if a stay. were not grantd (,e., the main hilm factorswaighing in favor of a stay), so that such hrri cculd mor clearly bc balanced agaiust all of theallegations of subatantial harm to othe,r interestcd parties rnder facto tre if a stay wrcimposed (i.e,, the. main harm factors weighing agist a stay). Howver, as w. stad abovc, thisordcr is organized aound the specific argumcnts made h the appellants stay motion. S/e wll,thetefore, discws other potential irreparable injruies that might result if a stay wer not grantedas those claims have been framed by the appellants.

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No, 201?4P2067

D etn ilon oJ Intere$ed Pa ies

Regarding the framework of the stfly analysis, the appcllants ncxt asscrt tht th thrd andfor.uth stay factors should. be considered together in this cas iu light of thc."multitude" ofintetested parties and public interes that oould be affccted by the decision ueth+r to stay thecottt's ordcr. This assertipn ties directly to another argumeut thc appellants make, that thecircuit court erred irr limiting its discrssion of other interested partics to the rnrions that broughtthis suit. The appellants corrtend. ftat thc circuit court should bave exparrded its definition ofinterested parties to include the "litcrally thousands of municipal employers and tens ofthousands of mmicipal employces" affected by the challcnged provisions of MERA, and pointsout 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 ofthe stay ecuatin. Ve have already explained, howcvcr, that the crrx of the bdurcing test is to

gh against those factorl opposing astay. Therefore, it,is a di$inction wilhout difflerence whethc the circuit cowt considercd thcinterests of those municipal employets and eurployecs who support the challenged provisions ofMERA urdcr the rubric of "other intercstcd parties," or as prt of its consideration of the publicinterest. Wc are satisfied from orr own review of the circuit court's desision that the court didconsider allcgcd harms to the ilrterests of municipal employes and employecs who support thechallenged provisions of MERA as prt of its discussion of whcther the appellants haddemousFated that there was widespread coufusion resulting from the oircuit cor.ut's order.

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13/18

No. 20124P206?

wefi it .eitoal o lif it"tu n:tgo,,tg State wde ConfasbnThe 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 ofa stay-fails to askoowledge that the circuit cotxt did, in fact, addcss thsse conrns in another

t ' _-_11"portiou of its decison. That is, the circuit court did not ore claimed harm to municipalemployers and otlrers, but athcr gavc little weight to the evidence the appellants offered on thistopic. :

Although the appellants did not prwide us with copree of thcir affidavits with their stayrnatarials, wc surrnise from the parties' arguments and the cjrcuit.court's order that thcallegations thcrcirq madc by several officials reprcscnting nonparty public employers, are asfollows: (l) thErc is wideqpread confusion among municipal employers abort the statewideeffect of the circuit court's order on such topics the scope of issuss that must be bganedwith publc unions, the status of bargaining representative tbt werc deccrtifi.ed prrsuant toMERA prior to the effective date of the circuit otut's decision, and the continuing validity ofrrilatcrel chauges implcmented by municipal employr (?) this confwioq will bave a negativoimpact 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 statewidebinding effect is a significant potential issue, w note ttrat thc appcllants.takc thc position that itolcarly does not have statewide effect. If the rcach of the circuit court's order is as plainlylimited as the appellants rgu, the appallants bve no reed for a stay becerse .therc is nounderlyiug cause for confision on the part of nonparty muuicipal employers. The circuit courtessentially made this point when it noted that it did not find the affidavits persuasive, in paft

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14/18

No. 2012F2067

hecEuse thc affinuts did not stte that they had actuolly read the decisioq consulted the AttorneyGeneral or separate legal counsel, or taken any othet steps to allay their couftsiort oruncertainty.l

Secon{ thc appcllants have failed to present a ogent explanation as to why a stay ot theabsence of a stay would affect the likelihood of the hatms that the appellants onteud f{ow fromthe alleged confiision.

The appellants assert$g,"q$lig-:er-wetherttre crcuit corrt's decsion is bindrngstatc-widFwill bve " oug*tiuu puci o+ m* municipal budgcting process. Wc understsnd thoappellants to be arguiug that municipal employms aross the state might spend mor as a resultof engaging in contract negotiations based on confrsion over whether they are uow required tof!otiate for wages in.excs.s=gf ryrl::JrylS increases .1qd.othu items that wold have ancffcct on the municipalrty's budget. Flowevcr, the appellants do not explain why the dsk flowingfrom this alleged corrfision does not cut equally both ways. It may be that some cmploycts willchoose to play it "safc" and cngage il bargaining to protect thmselves if the legislation at,issuehere is ultimately declared rnconstitutional, Ad, if employem choose this toute, s theappellants acknowledge in supplemurtal briefing, thse would bc no legal impediment to

I In their motion for a stay, the appellants iudicated tha the cicuit corut's decision was notbinding state-wide. trn response t our request for supplemental briefing the appcllants expanded on thistopio and moro forcefully argued that thc circuit corrt's decision is not binding stste*wide on nonparties.We acknowlodgo that the respondent'rgu that tlre circuit court's deeision hc,tc ir birtdirtg state-wide. But we rojt out of hand tho proposition that thc circuit court's decisiorr has the sarne effcot as apublished 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 sirnilardoctine 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 ofsttewide effect that would justi a stay order inthis csse.

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ngotiating conilitionl oontrrct orftt6activ-'i{agS-th'at Tke-iirto account the'uncertain legalstatus of the challenged $tfltrltory provisions, or to attemptingto recoup ,ny ove{payments if Actl0 is ultimately upheld. Such action would reducc the risk of inpambleharm.

If, ou the other hild, this oonfi.usion leads municipal cmploycrs to decline to bargaL^. t!r+rrzuch 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'pellateproccedings regardirrg the merits, tlrey raay irrcrrr litigation costs and, ultimately, be required tocompersate union members for losses owrng to the cmploycrs' compliance with chauges iltMERA tliat are later deemed uiiconsttulional. '

In surn, thc appcllants' argumnts do not persuade us tbt confiuion


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would affect such litigtion. rWhether a $tay is or is not ganteq nothisg brought to orrr attntionby the appellants prohibits nonparty unions ftom suing municipal employers who dccline tobargain on topics covered f t* nqy'ryFR prgvillory. The imposition of a stay would notprevent srch rnions from filiug suit. Indeed, because the impositiori of a $ty does not resolvcthe uudering lcgal iszus, it is hard p imaginc why the imposition of a stay would have anyeffect on whether nonparty unous filed suit. Untit the Wisoonsin Supre,mc Court finally rcsolvssthe issues, either by issuing a definite ruling on the merits oi by issuing an ordcr declining'orevicu, 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 givcny ore weight than it did to their affidaviu alleging statewide confision. It appears to us thatthe sort of confisiorr the aplell*rts highlthr i$'iiot''iroiict of thc circuit court's decision, butrathsr 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 theconstitutional issues are finally resolved by action of oru flrprmc corut.

,4ssumptinn Anilerinfr Clrrrs of Subsnnfial HrmThc 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 harmmight result to other intcrested parties or the public if a stay were granted: ft* is, the appcllantsrgua tht the premisc that rurion mcmbers would suffer any hsnn-*urhcthcr fiscal in natrre oran intangible violation of their corutitutional rights-rests upon r assurnption tbat ttre ciri1

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court conctly ruled the statute unconstitutioffil, trrd that suoh an assumptiou *essentiallyaviscerated the presumption that the appellants are likdly to sucsd on appeal."

tWe conclude tht tbis arg,ument is. bsed on a misapprehension of how theGadenschwager test 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 eventtnt the decion on appeal s ultimately reversed, against harm that ight result from theimposition of a sta in the event.that the decson on appeal is ultimately afiirmed. This is thconly 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 fourthfactor that thc decision on appeal will bc affrrmed doc not conffict with a determination madeunde'r the first factor tht a movant has demonsftsted a likelhood of success on appeal. As wehave explained above, a movant car establish a likelihood of success on appeal by making ashowing that there is "morc tU* * mere 'possibility"'that a1 ppel will succeed. The firstfactor docs not require a finely calibrated evaluation of the merits, or even a determination that itis more likely than not that an ppel would succeed. j\nd, as wc hve xptin{ w are notpcrzuadad tht lttis case falls into that catcgory of ces in which it is apparent tht the appellantsare nearly ccrtain to win on appeal.

Therefore, v/e se nothing iuconsistnt about assuming that the:circuit corxt's decisionwll b afifirmed when cor:sidering the potentiat harm to other parties if a stay wer gnntcd, andweighing that against the harm tbt could result in the abscncc of a stay assuming that thc circuitcourt's decisioa were reversed. Rather, we believe those ae precisely the competingpossibilities that ac zupposed to be balanccd in considering whcthr to grant a stay.

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Having rejected the appeltanTs' legal challenge to how the third and fourth fator$ shottldbe interpreted in relation to thc first factor, wc reiterate that it was the appellants' burden ndertte third ard fourth factors to show that no intertsted parties would b. hsnncd if a stay wcregranted. 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 wffgrantd and they weic thcreby prohibited ftory bargaining for be+cfits, limted in theirnegotiations for wage increases, nd required to recertify their urions according to thechallenged provisions. Thereforc, ttre cirflrit court did not apply an improper staudad of law orotherwise erroncously exercise its discretiou when it determined that the appellants had fatld tomeet 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 astay, the proposition that, evc,lr with a stay imposed, municipal employers could not becompelled to $Ent wagc increases higher than thc cost of living, whereas, in the absence of astay, public employees would be flatly prohibited from bargaining on benefits or workcondltisns, and would bc limited to ost-of-living wage increases. I U*.u*, the uttirnatelvighiry of suoh factors was within the ciruitcorrt's discrction, we se.e no'b$is to set aside thecircuit court's decision that a stay ws not warranted.

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

an M FremgenCIe k af Caar t f ,{ppeals

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MTI v. Walker: Order Denying Stay

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