Category Archives: madison

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.

Thus:

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.

and

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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Kou Shui Ji at ZenZen Taste

New, very good Chinese place out by West Towne:  ZenZen Taste, featuring what Steph Tai calls “contemporary Chinese” food, neither traditional nor Americanized.

I have had Szechuan peppercorn before but never so much Szechuan peppercorn as in their kou shui ji (literally “saliva chicken,” here rendered “mouth-watering chicken.”)  It is hard to describe in words what this actually does to your mouth.  To an extent you feel you have chewed a lemon.  At the same time your lips buzz as if you’ve eaten something spicy-hot and salty.  When you drink water, the water tastes sour and fizzy.  How much kou shui ji did I eat?  I ate two bites of kou shui ji.  I was defeated by the kou shui ji.

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Going Out of Business

There’s a certain strain of 1960s-70s visual art that’s so sunny, so optimistic, so earnest in its belief that a better world is possible and that world would be really colorful, that it makes me cheerful whenever I see it.  (Relevant:  Mexico 68 Olympics poster.)  So I was happy to go by this in the Chazen today:

But it turns out that, while Mel Bochner is actually a painter active in that era, he made this in 2013!  Thanks for keeping it going, Mel Bochner, whoever you are.  I like this a lot and I like the Chazen for putting it up.

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Dane County Fair: Flippin’

1.  I realized today that the Dane County Fair might be the only place my kids ever go which is reasonably representative of the socioeconomic and demographic mix of Madison.

2.  The usual:  funnel cake, Ferris wheel, etc.  But something special this year was Flippin’, a steampunk-themed acrobatics show.  Boy does that sound unpromising.  But it was actually kind of amazing.  Especially the Wheel of Death.

I didn’t think the Wallendas, who we saw at the fair a couple of years ago, could be beat.  But these guys might have done it.  There’s a bizarre optical illusion when one of the wheelers leaps as the wheel reaches its crest; his motion is almost in sync with that of the wheel, so it feels to the eye like you’re watching something happening in slow motion.  I was floored.

Three of the four members of Flippin’ are Españas, members of a family that’s been in the circus for five generations.  The dad, Ivan, is in the video above with his brother.  His two kids were in the show we just saw.  The mom, in 2004, fell 30 feet doing a routine and was killed.  I think that’s kind of how it is in these families.

 

 

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There’s no sick burn like a sick barista burn

I bought today’s State Journal at Victor Allen’s.

Barista:  Newspaper.  Victor Allen’s.

Me:  What?

Barista:  We were talking about how maybe we could draw a younger, more college-age crowd if we got people to post that they were here on Instagram, so like if you bought a newspaper you’d take a picture and caption it “Newspaper.  Victor Allen’s.”

Me:  Sorry, I’m in the old category, I don’t use Instagram.

Barista:  Maybe you could post it on your Myspace.

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Full professors make more money than bus drivers

Former Republican Congressional candidate and current UW-Madison history professor John Sharpless stands up for us against the Governor:

He said he arrives no later than 9 a.m. and leaves no earlier than 5 p.m. During that time, he said he’s either teaching, preparing lectures, doing research, attending required committee meetings, advising students and managing teaching assistants. Sharpless added that he often spends his evenings reading and grading papers.

“None of this seems like work to a guy like Walker because he lives a different life,” he said. “And I’m not going to make fun of what he does. I’m sure being a governor is a lot of work. He has to spend a lot of time in Iowa and South Carolina and North Carolina and courting other Republican big-wigs. That taxes the man horribly.”

But just to make it clear he’s still on board with GOP, he drops this in:

“I will retire with a salary that’s less than a Madison bus driver,” he said.

UW-Madison salaries are public records, so I can tell you that Sharpless’s is just under $80,000.  In 2012, only 9 employees of Metro made more than $70K.  And the ones who made that much, I’m pretty sure, are the ones who worked tons of overtime.

In other words, what Sharpless said is likely true in the strict sense of

“There exists a Madison bus driver whose salary this year exceeds mine”

but gives the wrong impression about typical full professors in the history department and typical bus drivers.

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Cool song, bro

I was in Barriques and “Bra,” by Cymande came on, and I was like, cool song, cool of Barriques to be playing this song that I’m cool for knowing about, maybe I should go say something to show everyone that I already know this cool song, and then I thought, why do I know about this song anyway? and I remembered that it was because sometime last year it was playing in Barriques and I was like, what is this song, it’s cool? and I Shazammed it.

So I guess what I’m saying is, I’m probably going to the right coffee shop.  Also, this song is cool.  I’m sort of fascinated by the long instrumental break that starts around 2:50.  It doesn’t seem like very much is happening; why is it so captivating?  I think my confusion on this point has something to do with my lack of understanding of drums.

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Many Words, by Little Red Wolf

One of the most beautiful songs I’ve heard lately.  Came over the PA in Froth House.  What th– what is this thing, I must have it!  You know the drill.

This is by Little Red Wolf, a Madison band, who have a great new record, Junk Sparrow, recorded by Brian Liston at Clutch Sound, the same guy who did my audiobook.  Range!

Of course the strange piano note, the one that kind of insists despite everything that it’s the right note and thereby colors the whole song with its weirdness and stubbornness, is sort of the same one that Weezer uses to devastating effect in “The Sweater Song.”   And yet the two songs are completely different.  Though the latter is also very, very beautiful.  And now that I listen to both again there’s also something in common about the way the wordless aah-ahh’s are deployed, but it might just be that everybody in the world, whether AOR-indie or alt-country, loves Doolittle.

Wait, are there readers of this blog so young as not to have heard “The Sweater Song?”  Very likely.  So OK:

 

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Selfie from the polar vortex

-13 Fahrenheit.

Polar snorkel

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Israel Story / Sipur Yisraeli

I just met Mishy Harman, who here in Madison is a mild-mannered visiting Ph.D. student in history but who back in Israel is a radio superstar!  He’s one of the hosts of Israel Story, a.k.a. the “This American Life” of Israel, which I’m told is one of the top-rated programs in the country.  The show’s in Hebrew, but for my non-Ivritophone readers (and for me!) the good news is that Mishy will be producing some segments in English in collaboration with WPR’s To The Best Of Our Knowledge:  here’s the first one, about the Alepo Codex.  If you want there to be still more English “Israel Story” than this, support their crowdfund campaign!

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