The Wisconsin Supreme Court gets home rule wrong and right

The Supreme Court made a decision in the Milwaukee police officer residency requirement case I wrote about, peevishly and at length, earlier this year.  Chief Justice Michael Gableman is still claiming the home rule amendment says something it doesn’t say; whether he’s confused or cynical I can’t say.

the home rule amendment gives cities and villages the ability “to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.”  In other words, a city or village may, under its home rule authority, create a law that deals with its local affairs, but the Legislature has the power to statutorily override the city’s or village’s law if the state statute touches upon a matter of statewide concern or if the state statute uniformly affects every city or village. See Madison
Teachers, 358 Wis. 2d 1, ¶101.

“In other words,” phooey.  The amendment says a state enactment has to be of statewide concern and uniform in its effect.  Gableman turns the “and” into an “or,” giving the state much greater leeway to bend cities to its will.  The citation, by the way, is to his own opinion in the Act 10 case, where he’s wrong for the same reason.

But here’s the good news.  Rebecca Bradley, the newest justice, wrote a blistering concurrence (scroll to paragraph 52 of the opinion) which gets the amendment right.  She agrees with the majority that the state has constitutional authority to block Milwaukee’s residency requirement.  But the majority’s means of reaching that conclusion is wrong.  Bradley explains: by the home rule amendment’s plain text and by what its drafters said at the time of its composition, it is and, not or; for a state law to override a city law, it has to involve a matter of statewide concern and apply uniformly to all muncipalities.  Here’s Daniel Hoan, mayor of Milwaukee, and one of the main authors of the home rule amendment:

We submit that this wording is not ambiguous as other constitutional Home Rule amendments may be. It does not say——subject to state laws, subject to state laws of state-wide concern, or subject to laws uniformly affecting cities, but it does say——subject only to such state laws as are therein defined, and these laws must meet two tests: First——do they involve a subject of statewide concern, and second——do they with uniformity affect every city or village?

Bradley concedes that decades of Supreme Court precedent interpret the amendment wrongly.  So screw the precedent, she writes!  OK, she doesn’t actually write that.  But words to that effect.

I know I crap on Scalia-style originalism a lot, partly because I think it’s often a put-on.  But this is the real thing.