Act 10, Scene 1

Lester Pines and Tamara Packard were ringside during the Madison protests

Published in 2011 Wisconsin Super Lawyers — December 2011

When Gov. Scott Walker rolled out his union-busting plan earlier this year, protesters descended on the state Capitol as the country watched the drama unfold on TV.

Lester Pines and Tamara Packard just looked out their window.

“It was really amazing,” recalls Packard, who, along with Pines, is a litigator at Cullen Weston Pines & Bach (CWPB). “Both of our offices face the Capitol, so, especially during that really intense period where there were demonstrations going on all day, every day, there was a lot of noise that went with those protests, and it became sort of the soundtrack for our working lives for several weeks.”

The ringside seating seems fitting since Packard and Pines—along with several other attorneys at their firm, including Linda Harfst—represent the Madison teachers union. A client of CWPB for nearly three decades, Madison Teachers Inc. was the first group to protest the governor’s plan to strip collective bargaining rights from most public workers and charge them more for their health care and pension benefits.

“The Madison teachers got the ball rolling, then the state teachers union got on board, and everybody else got on board after that,” says Pines. “There’s no question that the Madison teachers were the people who spearheaded this initially.”

Adds Packard, “They were the boots on the ground.”

The teachers spent four days protesting at the state Capitol, prompting the Madison School District to file a lawsuit accusing them of striking illegally. Enter Pines, who pointed out to a judge that, legally speaking, the teachers were not striking at all. Under Wisconsin law, the purpose of a strike is to gain leverage against an employer. But these teachers had no beef with their employer, the Madison School District; their issues were with Gov. Walker and the state.

As Packard puts it, “They were simply exercising their First Amendment right to protest a bad behavior by their government.”

The teachers won their day in court, then went back to work voluntarily. But by then, the protests had taken on a life of their own.

Though the collective bargaining battle has consumed much of Pines’ and Packard’s time this year, their practices are multidimensional.

“Not everything I do is politics,” notes Packard. “A lot of the employment work that I do is your straightforward employee-side discrimination case: advising people about severance agreements, wage-hour cases.” Packard is also a founding board member, and a past president, of the Fair Wisconsin Education Fund, a civil rights group for GLBT people.

Pines leads the firm’s litigation group but he also has a successful commercial practice. In addition, he has handled a number of high-profile criminal defense cases, though that practice is smaller than it once was. “It involves now mostly serious felonies, white-collar stuff,” Pines says. “The truth is, Madison is a place that still has a relatively low amount of crime, which is good.”

Pines, 61, and Packard, 42, have teamed up on a number of big cases. In 2009, they were hired by Democratic Gov. Jim Doyle to defend the state’s new domestic partner registry—which granted rights such as medical decisions and property inheritance to same-sex couples—against a suit by conservative group Wisconsin Family Action. In March of this year, Gov. Walker fired Pines and Packard and told U.S. Circuit Judge Daniel Moeser that he wanted to stop defending the registry law. Nevertheless, Moeser ruled in June that the registry passed constitutional muster.

It was a sweet victory for Pines and Packard, who by then were embroiled in the Act 10 opposition. Pines says he has never seen anything like the protests surrounding Walker’s proposed legislation.

“I was here during the anti-war movement in the late ’60s and early ’70s,” says Pines. “These demonstrations dwarfed the biggest demonstration that ever occurred in Madison by a figure of at least five times. There were 100,000 people at one demonstration [this year], and the biggest anti-war demonstration that was ever here, after the invasion of the Cambodia, was maybe 20,000 people. The difference was that, in May of 1970, when there were huge demonstrations against the invasion of Cambodia, it also led to basically an insurrection and fire-bombing and burning of buildings. ... Whereas these demonstrations were completely and entirely peaceful in every way.”

One reason things never got out of control, Pines and Packard say, is that law enforcement sympathized with the protesters, even though the police union did not stand to lose as much as most government workers under the governor’s proposal.

“[The police] weren’t being trampled upon quite as badly as other unionized governmental workers, but they were in solidarity,” says Packard. “So they were just personally inclined to not see the protesters as ‘others.’ And also, times have changed. It’s not 1970 anymore.”

“These people who were demonstrating were middle-class people,” says Pines. “You don’t usually see large demonstrations of not only middle-class but, to a certain extent, middle-aged people.”

Hoping to stall a vote on Act 10, 14 Democratic state senators left Wisconsin for three weeks. This infuriated Senate Majority Leader Scott Fitzgerald, who issued a memo announcing that arrest warrants would be issued for the missing senators.

Pines and colleague Susan Crawford immediately sent a press release to every media outlet in the state saying the Senate had no authority to have the Democrats arrested.

“We got it out within the same news cycle as the majority leader’s, quote-unquote, warrant,” recalls Pines. “Our memo went viral on the Internet and was downloaded thousands and thousands of times. It was amazing.”

In the end, Republicans passed Act 10 without their missing colleagues at a hastily called session. Too hastily, according to Judge Maryann Sumi. She issued a stay, saying the bill had been passed without the required 24 hours’ public notice, in violation of the state’s open meetings law. When Republicans vowed to enforce it anyway, Sumi threatened legal sanctions. But in June, the state Supreme Court overturned Sumi’s ruling.

Though the unions lost the battle, the war was just beginning. Act 10 has been surrounded by a flurry of lawsuits, and the CWPB team has been in the thick of it.

“Starting in March, it’s been a drop-everything process to be involved with all this,” notes Pines. “There are still open questions about the manner in which [Act 10] was adopted, relating to rules and procedures that have nothing to do with the open meetings law. Then there is a serious question about whether or not the bill is constitutional under the U.S. Constitution and also under the Wisconsin Constitution.”

Pines and Packard don’t want to tip their hand, but they promise more litigation—not only related to Act 10, but also to the state’s new voter ID bill, which Pines pronounces “the worst in the nation.” The Republican-controlled state Legislature enacted the law—which requires a photo ID to vote; if one doesn’t have a driver’s license, it requires a birth certificate or passport to get a free state ID—maintaining it was needed to prevent voter fraud.

“The possibility of massive voter fraud in Wisconsin is about as likely alien abduction,” Pines says.

“This is all a plan to keep students from voting, keep poor people from voting, keep minorities from voting,” says Pines. “Anyone who isn’t a white, upper-middle-class person who lives in a perfectly stable household can get caught up in this voter ID thing, and it’s preposterous.”

How will it all play out? With a wave of anti-union laws cropping up around the country, Pines thinks unions will have to stop relying on legal protections and revert to flexing their economic muscles.

Still, notes Pines, “This is not like China or a variety of Latin American countries or other countries where union members are imprisoned or murdered. That used to happen in America, and a lot of people forget that, that union members were murdered and they were suppressed legally through injunctions and so forth. That doesn’t happen now, and I don’t expect it to happen again, and that gives unions the opportunity to use different approaches.

“Ultimately there has to be some equilibrium with employers,” Pines continues. “It can’t just be that CEOs get to call all the shots in America.”

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