Category Archives: language

Two Hebrew words

  1. As part of my 2018 plan to read mostly books older than me, I’m reading Bleak House.  Found this, said of an urchin:

“He’s as obstinate a young gonoph as I know.”

This is of course via the Hebrew ganav (thief) via the Yiddish gonif.  Had no idea it had 19th century London demimonde currency.  Dickens is generally said to have been the first writer to put it in print in English, though Judith Flanders found a somewhat obscure reference a decade older.

“Gonoph” is overtaken by “gonif” as preferred English spelling sometime in the 1940s:

2. During L’cha Dodi last week I was struck by the word “Hitna’ari” (“shake yourself off!”).  That’s a word I know “Na’ar,” as in “Na’ar hayiti, gam zakanti,” (“I have been a youth and I have been old.”)  But does it mean “young” or does it mean “shake yourself off?”  Well, kind of both.  It seems there are two words, the na’ar of youth and the na’ar of shaking off.

Or is there only one word?  People have tried to connect the two senses:

I don’t know.  Hebrew speakers should feel free to weigh in on either of these words!

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Scott Walker and the noncommutativity of Wisconsin statute, part II

Hey so remember last month, when the Walker administration didn’t want to fill two empty legislative seats, so they decided to treat the state law forbidding this as if it said something else?

Here, I’ll recap.  The law, statute 8.50 (4) (d), says:

Any vacancy in the office of state senator or representative to the assembly occurring before the 2nd Tuesday in May in the year in which a regular election is held to fill that seat shall be filled as promptly as possible by special election.

The state has decided to pretend the law says, instead:

Any vacancy in the office of state senator or representative to the assembly occurring in the year in which a regular election is held to fill that seat, before the 2nd Tuesday in May shall be filled as promptly as possible by special election.

In other words, the state’s claim is that a special election is required only if the vacancy occurs between January 1 and the 2nd Tuesday of May in an election year.  Whereas what the actual law says is that an election is to be called if there’s a vacancy any time before that 2nd Tuesday in May, i.e. as long as there’s enough time to call an election and have the new officeholder participate meaningfully in legislating.

Six voters in the affected districts have sued the governor.  There’s a hearing in the Dane County Circuit Court this week, on March 22.

The state has issued its response to the petition.

I’ve read the response.  It upset me.  It really upset me!  Not because I even care that much about whether we hold these elections!  But because the people whose job it is to uphold our state’s laws don’t care what those laws are.

The state’s leading argument is “mootness,” which goes like this: “we’ve now delayed this long enough that voters would not longer get any meaningful benefit from the state fulfilling the law’s requirements, so the claim that we have to fulfill the law’s requirements doesn’t stand.”

That might work!

Then it gets really interesting.  Here’s a passage from the response:

Under Wis. Stat. §8.50(4)(d), the Governor has a positive and plain duty to call a special election only when a vacancy occurs in the year of a general election from January 1 until the 2nd Tuesday in May.  Because the vacancies here did not occur in that year, Governor Walker has no positive and plain duties to call special elections.

See what they did?  They switched it!  They switched the order of the clauses in the statute to make it say what it does not, in fact, say!  Not satisfied with that, they added the language about January 1, which isn’t present in the law!

Won’t the judge ask them about this?  Won’t the judge want to know what possessed the state to “paraphrase” a law by moving words around and adding language, instead of quoting the language of the statute itself?

The response then goes on to explain why their interpretation of the law “makes sense.”  What they in fact do is explain why it makes sense that a special election isn’t required for vacancies taking place after May of the election year (the point on which their claim agrees with the law).  They are silent on why it makes sense that a special election isn’t required before January 1 of the election year.  Because that doesn’t make sense.

Maybe the screwiest part of all of this is that the statute in question uses language that appears again and again in Wisconsin code.  Look, here’s how 59.10(3)(e) authorizes special elections for vacancies on county boards:

The board may, if a vacancy occurs before June 1 in the year preceding expiration of the term of office, order a special election to fill the vacancy.

According to the state’s account, this means that special elections are authorized only if the vacancy occurs in the year preceding the election year.

If that’s the case, nobody told Sauk County, where a special election was ordered in August 2016 to fill a vacant seat on the county board.  It’s hard to doubt there are many such examples — all unauthorized by state law, according to the Walker administration’s current claim.

How could Brad Schimel have put his name to this?

(Update:  here’s the plaintiffs’ response to the state’s response.)

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Scott Walker and the Let’s Eat Grandma theory of legislative interpretation

How do you know when to call a special election for an empty legislative seat in Wisconsin?  It’s right there in the statutes, 8.50 (4) (d):

Any vacancy in the office of state senator or representative to the assembly occurring before the 2nd Tuesday in May in the year in which a regular election is held to fill that seat shall be filled as promptly as possible by special election. However, any vacancy in the office of state senator or representative to the assembly occurring after the close of the last regular floorperiod of the legislature held during his or her term shall be filled only if a special session or extraordinary floorperiod of the legislature is called or a veto review period is scheduled during the remainder of the term. The special election to fill the vacancy shall be ordered, if possible, so the new member may participate in the special session or floorperiod.

Pretty clear, right?  If a Senate or Assembly seat comes open before May of election year,  the governor has to call a special election, unless the last legislative session has already taken place and no extra legislative business is scheduled before November.  You hold an election unless the duration of the vacancy would be so short as to make the election essentially meaningless.

There are two seats in the Capitol open as we speak, the Senate seat formerly held by Frank Lasee and the Assembly seat once occupied Keith Ripp; both of them left to take jobs in the Walker administration in January.  But the governor has asserted that no special election will be held, and residents of those districts will go unrepresented in the legislature for almost a full year.

What’s Walker’s excuse for ignoring the law?  Are you sitting down?  The state’s claim is that the phrase “in the year” does not refer to “May,” but rather “any vacancy.”  So a vacancy arising in March 2018 is required by law to be filled “as promptly as possible” by state law, despite the severely limited amount of lawmaking the new representative would be have a chance to undertake; but if an assembly rep drops dead on the second day of the legislative term, the governor can leave the seat empty for two whole years if he wants.

I kid you not! That is the claim!

Do you think that’s really what the law says?

As this long, well-researched WisContext article makes clear, Walker’s “interpretation” of the law is, well, a novelty.  For fifty years, Wisconsin has been filling legislative vacancies promptly by special elections.  Most of these elections, according to Scott Walker, were optional, some kind of gubernatorial whim.  And it’s definitely not the case that the governor is leaving the seats empty because he’s spooked by the current lust-to-vote of Wisconsin’s Democratic electorate, which has already cost Republicans a long-held seat in Senate District 10.

The Walker administration would like us to read the law as if the phrases came in the opposite order:

Any vacancy in the office of state senator or representative to the assembly occurring in the year in which a regular election is held to fill that seat, before the 2nd Tuesday in May

But English is non-commutative; that sentence says one thing, and 8.50 (4)(d) says a different thing.

Even an extra comma would make Walker’s interpretation reasonable:

Any vacancy in the office of state senator or representative to the assembly occurring before the 2nd Tuesday in May, in the year in which a regular election is held to fill that seat

Commas change meaning.  As the old T-shirt says:  let’s eat grandma!

I suppose we should count ourselves lucky.  Given the syntactic latitude Walker has granted himself, where a prepositional phrase can wander freely throughout a sentence modifying whatever catches its fancy, he might have claimed a special selection is required only if a legislative vacancy occurs in May of an election year!  That would make just as much sense as the interpretation Walker’s claiming now.  Which is to say:  none.

What’s the remedy here?  I’m not sure there is one.  Someone in one of the affected districts could sue the state, but I don’t think there’s any prospect a lawsuit would conclude in time to make any difference.  I can’t see a court ordering an emergency halt to a legislative session on the grounds that two seats were illegally unfilled.

So there’s not much to stop the governor from breaking state law in this way.  Except natural human embarrassment.  A government that has lost the capacity to be embarrassed can be very difficult to constrain.

Update, Feb 26:  Looks like I was wrong to say nobody was going to do anything about this!  A group of voters in the affected districts, represented by the National Democratic Redistricting Committee, sued Governor Walker today.  Good for them.

Update:  I’ve learned from lawyer friends that the principle that a phrase like “in the year” is understood to modify the thing it’s close to, not some other clause floating elsewhere across the sentence, has a name:  it is “the rule of the last antecedent.”




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Ursula K. LeGuin is dead

She was one of the people who taught me what good writing was.  I read mostly SF as a kid.  Nothing against SF.  But a lot of it is … terrible.  We know this.  When I read LeGuin I suddenly saw what English could do when a writer actually cared about the words on the page, where they sat, how they sounded.  I couldn’t believe it.  Her sentences were more exciting than most people’s space battles.

The famous books are famous justly.  The Dispossessed.  The Left Hand of Darkness.  A Wizard of Earthsea.  (And when you’re talking about words on the page, think about how much more right that title is with “A” instead of “The.”)  Earthsea I just read again last year.  I felt, at once, glad I’d gotten to read it as a kid, but equally glad I’d come back to it as an adult so I could understand it in full.  Maybe 20 years from now I’ll read it again and say, “I’m sure glad I read it again — now I finally get it.”

(Here’s David Carlton on Earthsea.)

But the one I read down to shreds was her anthology The Compass Rose.  Especially “The New Atlantis.”  And hey look, the full text is online!

When I was in high school I thought I wanted to be a writer but probably really I just wanted to be the writer of this story.  I wrote a dozen crappy versions of it, each of which I thought of as original.  Looking at it now, I can hardly find a paragraph I didn’t rip off at some point.  I mean, just:

There was an electrified fence all around the forest to keep out unauthorized persons. The forest ranger talked about mountain jays, “bold little robbers,” he said, “who will come and snatch the sandwich from your very hand,” but I didn’t see any. Perhaps because that was the weekly Watch Those Surplus Calories! Day for all the women, and so we didn’t have any sandwiches. If I’d seen a mountain jay, I might have snatched the sandwich from his very hand, who knows.

It’s a small thing, I know, but this is how I learned an effect I don’t even have a name for.  Repeating a phrase but the phrase is delivered in two different voices.  It can be comic or it can be spooky, or, as here, it can be both.  I ripped it off from Ursula LeGuin as I ripped off so much else.  RIP.




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Not to exceed 25%

Supreme Court will hear a math case!

At issue in Murphy v. Smith:  the amount of a judgment that a court can apply to covering attorney’s fees.  Here’s the relevant statute:

Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.

To be clear: there are two amounts of money here.  The first is the amount of attorney’s fees awarded against the defendant; the second is the portion of the judgment which the court applies towards that first amount.  This case concerns the discretion of the court to decide on the second number.

In Murphy’s case, the court decided to apply just 10% of the judgment to attorney’s fees.  Other circuit courts have licensed this practice, interpreting the law to allow the court discretion to apply any portion between 0 and 25% of the judgement to attorney’s fees.  The 7th circuit disagreed, saying that, given that the amount of attorney’s fees awarded exceeded 25% of the judgment, the court was obligated to apply the full 25% maximum.

The cert petition to the Supreme Court hammers this view, which it calls “non-literal”:

The Seventh Circuit is simply wrong in interpreting this language to mean “exactly 25 percent.” “Statutory interpretation, as we always say, begins with the text.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Here, the text is so clear that interpretation should end with the text as well. “Not to exceed” does not mean “exactly.”

This seems pretty clearly correct:  “not to exceed 25%” means what it means, not “exactly 25%.”  So the 7th circuit just blew it, right?

Nope!  The 7th circuit is right, the other circuits and the cert are wrong, and the Supreme Court should affirm.  At least that’s what I say.  Here’s why.

I can imagine at least three interpretations of the statuye.

  1.  The court has to apply exactly 25% of the judgment to attorney’s fees.
  2.  The court has to apply the smaller of the following numbers:  the total amount awarded in attorney’s fees, or 25% of the judgment.
  3.  The court has full discretion to apply any nonnegative amount of the judgment to attorney’s fees.

Cert holds that 3 is correct, that the 7th circuit applied 1, and that 1 is absurdly wrong.  In fact, the 7th circuit applied 2, which is correct, and 1 and 3 are both wrong.

1 is wrong:  1 is wrong for two reasons.  One is pointed out by the cert petition:  “Not to exceed 25%” doesn’t mean “Exactly 25%.”  Another reason is that “Exactly 25%” might be more than the amount awarded in attorney’s fees, in which case it would be ridiculous to apply more money than was actually owed.

7th circuit applied 2, not 1:  The opinion reads:

In Johnson v. Daley, 339 F.3d 582, 585 (7th Cir. 2003) (en banc), we explained that § 1997e(d)(2) required that “attorneys’ compensation come[] first from the damages.” “[O]nly  if 25% of the award is inadequate to compensate counsel fully” does the defendant contribute more to the fees. Id. We continue to believe that is the most natural reading of the statutory text. We do not think the statute contemplated a discretionary decision by the district court. The statute neither uses discretionary language nor provides any guidance for such discretion.

The attorney’s compensation comes first out of the damages, but if that compensation is less than 25% of the damages, then less than 25% of the damages will be applied.  This is interpretation 2.  In the case at hand, 25% of the damages was $76,933.46 , while the attorney’s fees awarded were $108,446.54.   So, in this case, the results of applying 1 and 2 are the same; but the court’s interpretation is clearly 2, not the absurd 1.

3 is wrong:  Interpretation 3 is on first glance appealing.  Why shouldn’t “a portion of the judgment (not to exceed 25%)” mean any portion satisfying that inequality?  The reason comes later in the statute; that portion is required to “satisfy the amount of attorney’s fees awarded against the defendant.”  To “satisfy” a claim is to pay it in full, not in part.  Circuits that have adopted interpretation 3, as the 8th did in Boesing v. Spiess, are adopting a reading at least as non-literal as the one cert accuses the 7th of.

Of course, in cases like Murphy v. Smith, the two clauses are in conflict:  25% of the judgment is insufficient to satisfy the amount awarded.  In this case, one requirement must bend.  Under interpretation 2, when the two clauses are in conflict, “satisfy” is the one to give way.  The 7th circuit recognizes this, correctly describing the 25% awarded as ” toward satisfying the attorney fee the court awarded,” not “satisfying” it.

Under interpretation 3, on the other hand, the requirement to “satisfy” has no force even when it is not in conflict with the first clause.  In other words, they interpret the law as if the word “satisfy” were absent, and the clause read “shall be applied to the amount of attorney’s fees.”

Suppose the attorney’s fees awarded in Murphy had been $60,000.  Under interpretation 3, the court would be free to ignore the requirement to satisfy entirely, and apply only 10% of the judgment to the attorneys, despite the fact that satisfaction was achievable within the statutory 25% limit.

Even worse:  imagine that the statute didn’t have the parenthetical, and said just

Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.

It would be crystal clear that the court was required to apply $60,000, the amount necessary to satisfy the award.  On interpretation 3, the further constraint imposed by the statute gives the court more discretion rather than less in a case like this one!  This can’t be right.

You could imagine switching to an interpretation 3′, in which the court is required to satisfy the amount awarded if it can do so without breaking the 25% limit, but is otherwise totally unconstrained.  Under this theory, an increase in award from $60,000 to $100,000 lessens the amount the court is required to contribute — indeed, lessens it to essentially zero.  This also can’t be right.


2 is right:  When two clauses of a statute can’t simultaneously be satisfied, the court’s job is to find some balance which satisfies each requirement to the greatest extent possible in a range of possible cases.  Interpretation 2 seems the most reasonable choice.  The Supreme Court should recognize that, contra the cert petition, this is the interpretation actually adopted by the 7th Circuit, and should go along with it.



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Intersectionality as nonlinearity

I wonder if the idea of intersectionality would be better-understood in STEMmy circles if we called it “nonlinearity” instead.  Put that way, e.g.

“the condition of being queer and disabled isn’t the sum of the condition of being queer and the condition of being disabled, or even some linear combination of those, it’s just its own thing, which draws input from each of those conditions in some more complicated way and which has features of its own particular to the intersection”

it’s something I think most mathematicians would find extremely natural and intuitive.


Peter Norvig, the meaning of polynomials, debugging as psychotherapy

I saw Peter Norvig give a great general-audience talk on AI at Berkeley when I was there last month.  A few notes from his talk.

  • “We have always prioritized fast and cheap over safety and privacy — maybe this time we can make better choices.”
  • He briefly showed a demo where, given values of a polynomial, a machine can put together a few lines of code that successfully computes the polynomial.  But the code looks weird to a human eye.  To compute some quadratic, it nests for-loops and adds things up in a funny way that ends up giving the right output.  So has it really ”learned” the polynomial?  I think in computer science, you typically feel you’ve learned a function if you can accurately predict its value on a given input.  For an algebraist like me, a function determines but isn’t determined by the values it takes; to me, there’s something about that quadratic polynomial the machine has failed to grasp.  I don’t think there’s a right or wrong answer here, just a cultural difference to be aware of.  Relevant:  Norvig’s description of “the two cultures” at the end of this long post on natural language processing (which is interesting all the way through!)
  • Norvig made the point that traditional computer programs are very modular, leading to a highly successful debugging tradition of zeroing in on the precise part of the program that is doing something wrong, then fixing that part.  An algorithm or process developed by a machine, by contrast, may not have legible “parts”!  If a neural net is screwing up when classifying something, there’s no meaningful way to say “this neuron is the problem, let’s fix it.”  We’re dealing with highly non-modular complex systems which have evolved into a suboptimally functioning state, and you have to find a way to improve function which doesn’t involve taking the thing apart and replacing the broken component.  Of course, we already have a large professional community that works on exactly this problem.  They’re called therapists.  And I wonder whether the future of debugging will look a lot more like clinical psychology than it does like contemporary software engineering.
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Robin laid a gun

OK here’s a weird piece of kid culture AB brought home:

Jingle bells, Batman smells

Robin laid a gun

Shot a tree and made it pee in 1981

This dates back at least to 2007 apparently.

It scans and rhymes very nicely but makes so sense at all.  What can it mean?

It seems like we are witnessing a kind of cultural hybrid; the “Jingle bells / Batman smells” of my childhood has here combined with a “Jingle bells / shotgun shells” tradition I was unaware of until now, which is actually older than the Batman version.  A lot of the “shotgun shells” versions found online involve Santa meeting his death in a hail of bullets, but “shot a tree and made it pee” is not uncommon.  I wonder how many utterly nonsensical kids rhymes we know are actually hybrids of different songs, each of which at some point sort of made sense?


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Portuguese vs. Portuguese

The Portuguese edition of “How Not To Be Wrong” just arrived at my house.  “Portuguese” as in “from Portugal” and as distinct from the Brazilian edition.  Interesting how two versions of the book in the same language can be rather different!  Here’s the opening paragraph in Portugal:

Agora mesmo, numa sala de aula algures no mundo, uma estudante esta a reclamar com o seu professor de matematica.  Este acabou de lhe pedir para usar uma parte substancial do seu fim de semana a calcular uma lista de trinta integrais definidas.

And in Brazil:

Neste exato momento, numa sala de aula em algum lugar do mundo, uma aluna esta xingando o professor de matematica.  O professor acaba de lhe pedir que passe uma parte substancial de seu fim de semana calculando uma lista de trinta integrais definidas.

Ok, those are not too far off.  Here’s how some lines of John Ashbery’s “Soonest Mended” are translated in Portugal:

E vimos que ambos temos razao, ainda que nada

Tenha resultado em coisa alguma; os avatares

Do nosso conformismo perante as regros,

E ficar sempre por casa, fizeram de nos — bem, en certo sentido — <<bons cidadaos>>

and in Brazil:

Esta vendo, ambos estavamos certos, embora nada

Tenha de algum modo chegado a nada; os avatares

Da nossa comformidade com regras e viver

Em torno de casa fizeram de nos … bem, num sentido, “bons cidadaos”

I don’t know whether Ashbery’s poems have official Portuguese translations.  The only one I could find of “Soonest Mended” was in a book of criticism by V.B. Concagh, where the last two lines were rendered

Deste conformarmo-nos as regras e fazermos a nossa vida

Ca por casa fizeram de nos — bem, num certo sentido, “bons cidadaos”

The line I hit very hard in English is  “For this is action, this not being sure.”  That last phrase is rendered

  • (Portugal) esta incerteza
  • (Brazil) essa falta de certeza
  • (Concagh) este nao esta seguro

I don’t read Portuguese but the last, most literal rendering seems best to me, assuming I’m right that it captures something of the “not the way you’d normally say it”-ness of the Ashbery:  “this uncertainty” or “this lack of certainty” in English don’t have at all the same quality.

Note:  Because I was feeling lazy I have omitted all diacritical marks.  Lusophones are welcome to hassle me about this if it makes the quotes ambiguous or unreadable.


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Home rule in Wisconsin: the or and the and

The Wisconsin Supreme Court is hearing arguments about a residency requirement for employees of the city of Milwaukee.  Milwaukee has a law requiring city employees to live within Milwaukee’s boundaries.  The state legislature passed a law forbidding cities from making or enforcing such laws.  Last summer, the 1st District Court of Appeals found that law in violation of the Home Rule Amendment to the Wisconsin Constitution.  The constitutional question is:  when can state lawmakers overrule the legislative decisions of cities and villages?

You might think this would be clear.  On November 4, 1924, voters in Wisconsin overwhelmingly approved the Home Rule Amendment, which added to the state Constitution:

Cities and villages organized pursuant to state law may 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. The method of such determination shall be prescribed by the legislature.

It turns out it hasn’t been so simple, in practice, to figure out what those 51 words mean.  In a recent high-profile case, the Wisconsin Supreme Court upheld Act 10, Governor Walker’s signature legislation; among other things, the law forbade Milwaukee from contributing to its employees’ pension funds.  The plaintiffs argued that this provision violated home rule.  Michael Gableman, writing for the court majority, said it was fine.

This raises questions.  First of all:  if a state law needs to affect every city uniformly in order to supersede local government, how can it be OK to specifically target Milwaukee’s pension fund?  Here the exact wording of 62.623 is critical.  The law doesn’t mention Milwaukee:  it applies to “any employee retirement system of a 1st class city.”   The “uniformity” requirement in the Home Rule amendment has generally been understood very liberally, allowing laws which affect cities in different size classes differently as long as the application within each class is uniform.

To construe the amendment as meaning that every act of the Legislature relating to cities is subject to a charter ordinance unless the act of the Legislature affected with uniformity every city from the smallest to the greatest, practically destroys legislative control over municipal affairs, assuming that laws could be drawn which would meet the requirements of the amendment so construed.

That’s from Van Gilder v. City of Madison (1936), one of the first Wisconsin Supreme Court cases to wrestle with the limits of home rule.  I will have more to say about Chief Justice Marvin Rosenberry’s decision in that case, some of it pretty salty.  But for now let’s stick to the point at hand.  The law can be argued to pass the “uniformity” test because it applies equally to all cities of the first class.  There is only one city of the first class in Wisconsin, and there has only ever been one city of the first class in Wisconsin, and it’s Milwaukee.

That’s the argument the Walker administration made in defense of the law.  But the court’s upholding the law rejects that defense, and the uniformity clause as a whole, as irrelevant the question before it.

In sum, our home rule case law instructs us that, when reviewing a legislative enactment under the home rule amendment, we apply a two-step analysis.  First, as a threshold matter, the court determines whether the statute concerns a matter of primarily statewide or primarily local concern.  If the statute concerns a matter of primarily statewide interest, the home rule amendment is not implicated and our analysis ends.  If, however, the statute concerns a matter of primarily local affairs, the reviewing court then examines whether the statute satisfies the uniformity requirement.  If the statute does not, it violates the home rule amendment.


no merit exists in the plaintiffs’ contention that the legislative enactment at issue in a home rule challenge must be a matter of statewide concern and uniformly applied statewide to withstand constitutional scrutiny.

Now this is weird, right?  Because what’s described and rejected as “the plaintiff’s contention” is what the constitution says.  Gableman replaces the Constitution’s and with an or:  in his analysis, a state law supersedes local powers if it’s either of statewide concern or applied uniformly to all cities.

Is this an act of wanton judicial activism?  Well, not exactly.  The phrase “as home rule case law instructs us” is important here.  The opinion marshals a long line of precedents showing that the Home Rule amendment has typically been read as an or, not an and.  It goes all the way back to Rosenberry’s opinion in Van Gilder v. City of Madison; and the reason there’s such a long list is that all those other cases rely on Van Gilder, which has become the foundation of Wisconsin’s theory of home rule.

Which brings us to the main point.  I’m not a legal scholar, but what the hell, this is blogging, I get to have an opinion, and here’s mine:  Van Gilder v. City of Madison was wrongly decided and has been screwing up home rule jurisprudence for 80 years.

Rosenberry’s first go at explaining home rule goes like this:

The home–rule amendment certainly confers upon cities plenary powers to deal with local affairs and government subject to the limitations contained in the amendment itself and other provisions of the Constitution. The powers of municipalities are subject to the limitation that the municipality cannot by its charter deal with matters which
are of state–wide concern and its power to enact an organic law dealing with local affairs and government is subject to such acts of the Legislature relating thereto as are of state–wide concern and affect with uniformity all cities.

The “and” between statewide concern and uniformity is clear here.  But Rosenberry also says that municipalities simply have no power to address matters of statewide concern:  its powers, he says, are restricted to “local affairs and government” as distinct from matters of statewide concern.  So what cases are the second clause (“its power to enact an organic law….”) referring to?  Only those matters which are not of statewide concern, but which are affected by state laws which are of statewide concern.  Rosenberry gives no examples of such a situation, nor can I really imagine one, so I don’t think that’s really the conclusion he means to draw.  Later in the opinion, he settles more clearly on the policy adopted by Gableman in Madison Teachers Inc. v. Walker:

when the Legislature deals with local affairs as distinguished from
matters which are primarily of state–wide concern, it can only do so effectually by an act which affects with uniformity every city. It is true that this leaves a rather narrow field in which the home–rule amendment operates freed from legislative restriction, but there is no middle ground.


the limitation contained in the section upon the power of the Legislature is a limitation upon its power to deal with the local affairs and government of a city or village. Care must be taken to distinguish between the power of the Legislature to deal with local affairs and its power to deal with matters primarily of state–wide concern. When the Legislature deals with local affairs and government of a city, if its act is not to be subordinate to a charter ordinance, the act must be one which affects with uniformity every city. If in dealing with the local affairs of a city the Legislature classifies cities so that the act does not apply with uniformity to every city, that act is subordinate to a charter ordinance relating to the same matter. A charter ordinance of a city is not subject to an act of the Legislature dealing with local affairs unless the act affects with uniformity every city. State ex rel. Sleeman v. Baxter, supra. When the Legislature deals with matters which are primarily matters of state–wide concern, it may deal with them free from any restriction contained in the home rule amendment.

Now the ground has shifted.  In Rosenberry’s reading, when the home rule amendment refers to “local affairs and government” it specifically intends to exclude any “matters of statewide concern.”  I can accept this as a reading of those four words, but not as a reading of the whole sentence. If Roseberry is correct, then the phrase “of statewide concern” is never active in the amendment:  a local affair is, by definition, not a matter of statewide concern.  I think when your interpretation of a constitutional passage means that part of the text never applies, you need to think twice about your interpretation.

What’s more, Rosenberry holds that the state has the power to override local officials on purely local matters, of no statewide concern whatsoever, as long as it does so uniformly.  If that is so, what does he think the words “of statewide concern” are doing in the Home Rule amendment at all?

To me, the amendment has a pretty plain meaning.  Something like a residency requirement for city employees or a fiscal decision about a city pension plan is plainly a local affair.  It may also be a matter of statewide concern.  The state legislature can enact a law overriding local legislation if the matter is of statewide concern and the law in question applies uniformly to all cities.  I think Rosenberry just plain got this wrong in Van Gilder and it’s been wrong ever since.







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