Property Law and Wisconsin’s Right-to-Work Law

Property Law was one of the most challenging classes during the intensely competitive first year of law school. Law school students universally refer to the first year as “1L” and just thinking about my 1L year makes me glad law school is 20-years behind me. And that says a lot because using the phrase “20 years” makes me sound horrifically old.

Speaking of old, I liked many of the classes during my 1L year — contracts, torts, even criminal law — but property law seemed so archaic. The property lectures did not explore many of the real life transactions that we handle at Turke & Strauss, for example, we did not learn about negotiating leases or purchasing commercial property, instead, the lectures were mostly devoted to learning the theory behind property law concepts. One such concept is the notion of “takings.” In criminal law and in the real world, the word “taking” is typically associated with a theft (e.g., you took my jacket, you terrible thief).  In property law, a taking is a term generally associated with some form of government action that infringes on the rights of a property owner.

Cornell University Law School describes a “taking” as, when a government actually or constructively takes private property for public use, that government must pay “just compensation” to the property’s former owners.

A taking can refer to government action that impacts real property (e.g. placing a road in your backyard) or it can relate to the infringement of an intangible property interest. Cases across the country have explored the boundaries of these property interests. For example, do employees have a property interest in their future retirement benefits? Do school children have a property interest in a quality public education? Do citizens have a property interest in clean drinking water? Legal scholars will likely continue to write about these property interests and to what extent they ought to receive constitutional protection.

Recently in a Wisconsin state court lawsuit, International Association of Machinists District 10 and its Local Lodge 1061 et al. v. State of Wisconsin et al., case number 15-cv-628, the judge found Wisconsin’s 2015 Right to Work Law (Wis. Stat. § 111.04(3)(a)(4); § 111.06(l)(c)) to be unconstitutional as a lawful “taking” of the unions’ property interest in fees collected from union members. Federal labor laws require unions to collectively bargain on behalf of all workers whether they are union-members or not. The unions argued that the Right to Work Law was unconstitutional because it prohibits them from collecting dues from non-union members, even though they are required to bargain on their behalf.  Judge C. William Foust agreed, finding that prohibiting unions from collecting fees from non-members to cover their share of collective bargaining costs constituted a “taking” in violation of Wisconsin’s state constitution. To better understand the legal analysis, read Judge Foust’s Order. This case is likely far from over, as the State already has indicated that it will appeal the decision. Regardless of where you land on this issue, this is a fascinating and modern application of age-old property law .

To Learn More:

The New York Times

Milwaukee Business Journal


The Washington Times

The Cap Times