AB was talking about being President this morning.
Me: I think you could be a really good candidate; you’re funny, and you get along with almost everybody.
AB: And I have great hair!
She gets it.
AB was talking about being President this morning.
Me: I think you could be a really good candidate; you’re funny, and you get along with almost everybody.
AB: And I have great hair!
She gets it.
I was explaining the “regular price” scam to CJ the other day. A store sells a vacuum cleaner for $79.95. One day, they put up a sign saying “SALE! Regular price, $109.95; now MARKED DOWN to $79.95.” The point is to create an imaginary past that never was, a past where vacuum cleaners cost $109.95, a difficult past from which the store has generously granted you respite.
This is what Trump’s team is doing. They’re trying to create an imaginary past in which the last 5 years of life in America was characterized by ubiquitous street crime, unchecked terrorism, and mass unemployment. So that life in America in 2017 and 2018 will seem comparatively placid, safe, and prosperous. Look how much I saved you on this goddamn vacuum cleaner. You’re welcome.
Voters in South Dakota approved a sweeping new government ethics law by referendum in November. The South Dakota state legislature just overruled them.
Can they do that?
Yes and no. A law passed by referendum is, in the end, a law; and laws can be repealed by the legislature. A lot of states have protections against this practice, which is called “legislative tampering.” South Dakota is one of 12 states that doesn’t. So if you think the people can band together and pass a law by ballot measure there, you’re only sort of right; if the people’s will goes against the will of the legislative majority, as in this case, right out the window goes the popular vote.
But the legislature did more. The bill, HB 1069, finishes off with the following language:
Section 35. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist, and this Act shall be in
full force and effect from and after its passage and approval.
The declaration of an “emergency” does two things: it makes the bill active immediately upon passage, thus preventing the ethics commission from coming into existence even temporarily, and it prevents the people of South Dakota from launching a new referendum to veto the repeal and restore the ethics law.
I don’t think they can do this.
Under the South Dakota Constitution, some kinds of laws are subject to veto by popular referendum and some are not. Those laws protected from referendum are categorized as follows:
However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.
The legislature doesn’t have the power to protect a law from referendum just by declaring an emergency. It has to fall under one of the two protected categories delineated in Section 1 above. This was laid out in Lindstrom v. Goetz (1951):
Only those laws which are not subject to the referendum, according to § 1 are subject to the emergency clause authorized by § 22. State ex rel. Richards v. Whisman, 36 S.D. 260, 154 N.W. 707, L.R.A. 1917B, 1. The same rule applies to municipalities. City of Colome v. Von Seggern Bros. Ludden, 56 S.D. 390, 228 N.W. 800. Whether a law or ordinance is subject to the referendum is a judicial question. If it is found that the law is not subject to the referendum, the legislative declaration of an emergency is conclusive. If it be found that the law is subject to the referendum, the declaration of an emergency is void, for then no emergency could exist.
The Legislature, in HB 1069, invoked the second category of protection. That’s what I don’t think they can do. The interpretation of what counts as “necessary for … support of state government” in South Dakota has traditionally been pretty broad, encompassing laws designed to enhance or even redistribute state revenue. But it’s not unlimited. Check this out, from “Restrictions on Initiative and Referendum Powers in South Dakota,” Lowe, Chip J., 28 S.D. L. Rev. 53 (1982-1983), p.61:
I don’t think you can say, with a straight face, that eliminating the independent ethics commission is an appropriation bill or a taxing measure. So their claim dies here: they can overrule the referendum, but they can’t prevent the public from overruling them right back.
I’ve talked about women in math a lot on this blog and maybe you think of me as someone who is aware of and resistant to sexism in our profession. But what if we look at some actual numbers?
My Ph.D. students: 2 out of 15 are women.
Coauthors, last 5 years: 2 out of 23 are women.
Letters posted on MathJobs, last 2 years: 3 out of 24 are women.
That is sobering. I’m hesitant about posting this, but I think it’s a good idea for senior people to look at their own numbers and get some sense of how much they’re actually doing to support early-career women in the profession.
Update: I removed the numbers for tenure/promotion letters. A correspondent pointed out that these, unlike the other items, are supposed to be confidential, and given the small numbers are at least partially de-anonymizable.
Nobody decided to kill Terrill Thomas. He kept flooding his cell at the Milwaukee County Jail and making a mess so they just turned off the water to his cell. Then they left it off until he was dead. It took six days. Fellow inmates say he was calling out for water. Corrections officers say they checked in on Thomas every half hour, and “he had made some type of noise or movement” every time. Until the last time, when he didn’t make any type of noise or movement because he’d died of thirst.
How did this happen? It didn’t happen because David Clarke — the sheriff of Milwaukee County, and a top candidate to lead the Department of Homeland Security in the Trump administration — wanted to kill a prisoner in the most agonizing way imaginable. What kind of psycho would want that? I don’t think Sheriff Clarke wanted to kill a newborn baby either. The baby was the fourth person to die in the jail since April.
These people died because nobody really seems to care what happens in the Milwaukee County Jail. The medical services there are run by Armor Correctional Health Services, a company which oversees healthcare for 40,000 inmates in 8 states. What are you saying about your priorities if you call your health care company “Armor”?
Armor’s glassdoor page doesn’t make it sound like a great place to work. One employee writes: “Stop being bean counters and start listening to your employees. We are asked to do too much: too many patients, too many intakes, not nearly enough staff to be in compliance with your own rules!” Armor was sued by the state of New York this year over 12 inmates who died in the Nassau County Jail, including Daniel Pantera, who died of hypothermia in solitary confinement; they settled the suit last month for $350,000 and are barred for three years from bidding for contracts in the state. Armor does get a very nice endorsement, though, from Palm Beach County Sheriff Ric Bradshaw, who says right on the front of their website, “Armor stands out as an exemplary model of what partnership in correctional health should look like.” Bradshaw’s department was held liable this year for $22.4m in damages to Dontrell Stephens, and this summer settled for $550,000 against a former U.S. Marshall who said he was roughed up by deputies after stopping to help the victims of a traffic accident.
Here in Wisconsin, Armor’s performance is overseen by Ronald Shansky, a court-appointed monitor and the first president of the Society of Correctional Physicians. Some of what Shansky has to say, based on his visit to Milwaukee County correctional facilities last month:
As for the deaths:
Shansky also, I should say, has a lot of praise for some staff members at the jail, characterizing them as devoted to their jobs and patients and doing the best they can under strained circumstances. And I believe that’s true. Again: the doctors of Armor didn’t want Terrill Thomas to spend six days dying of thirst. Neither did the CEO of Armor. Neither did David Clarke. But it happened. And everyone participated in creating the circumstances under which it happened, and under which it’s likely to happen again: public services outsourced to companies without the staff or resources to do the job right.
It starts with jails. But it goes on to schools, to parking, to Medicare, to policing, to the maintenance of our bridges and roads. You’ll hear people say those services should be run like businesses. We can see in Milwaukee County what that looks like. Does it look good?
Hillary Clinton lost the presidential election, but won the popular vote by 2% over Donald Trump, roughly in line with the popular margin George W. Bush enjoyed in his 2004 re-election campaign against John Kerry.
Does that matter?
As many of my conservative friends have pointed out, it doesn’t matter at all as far as who should be President. Contests have rules. If you don’t win the most games in the AL East, you don’t win the division; doesn’t matter if you scored more runs than the other teams and allowed fewer. That’s not how we decide who wins.
It doesn’t matter; but it does matter. If you actually want to know not just which team won the division, but which team is better at baseball, you do want to keep track of runs scored and runs allowed. Same thing if you want to make predictions about which team will win the division next time. Or to give good advice as to whether a team needs to reshape its whole strategy or is best off sticking with its current approach.
My conservative friends also like to point out that the United States is a republic, not a democracy. They’re right about that too. Our electoral system, by design, will sometimes choose as President someone the American people don’t prefer and whose promised policies most of us don’t want enacted. With a little effort you can even come up with a story that makes sense of this: at some moments, you imagine, you need a President determined to protect the interests of the more vulnerable parts of America against the crude rule of the majority, who has a clearly articulated political vision that doesn’t sway with the gusts of public opinion, who fundamentally doesn’t mind being disagreed with, even disrespected, by the majority of the people he serves.
I don’t think that’s the guy we got.
Among those who did speak on the record to Mr. Sherman is Stephanie Gordon, an actress who in one part of that show dropped the towel she wore. She was asked by Mr. Ailes to come to his office for a Sunday photo session and felt extremely uncomfortable about having to do this for the producer. But she says Mr. Ailes could not have been nicer. He took pictures and later sent her a signed print inscribed: “Don’t throw in the towel, you’re a great actress. Roger Ailes.” But Mr. Sherman also has a story from a woman named Randi Harrison, also on the record, who claims Mr. Ailes offered her a $400-a-week job at NBC, saying: ‘If you agree to have sex with me whenever I want, I will add an extra hundred dollars a week.”
These don’t sound like the voices of the same man.
I think they totally sound like the voices of the same man. It’s not like someone who sexually harasses one woman can be counted on to sexually harass every single woman within arm’s reach. Bank robbers don’t rob every single bank! “Why, I saw that man walk by a bank just the other day without robbing it — the person who told you he was a bank robber must just have been misinterpreting. Probably he was just making a withdrawal and the teller took it the wrong way.”
And what’s more: don’t you think Ailes kind of could have been nicer to Gordon? Like, a lot nicer? Look at that exchange again. He put her in a position where she felt extremely uncomfortable, and declined to sexually assault her on that occasion. Then he sent her a signed print, on which he wrote a message reminding her that he’d seen her naked body.
I think both these stories depict a man who sees women as existing mainly for his enjoyment, and a man who takes special pleasure in letting women know he sees them that way. One man, one voice.
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.
The Supreme Court held today in Utah v. Strieff that if you stop someone illegally, then run a search on their drivers license and find they have unpaid traffic tickets, giving cause for arrest, and you then arrest them, search them, and find drugs, the drugs are admissible evidence despite arising by means of an illegal stop. I read through the decision, following the cites and deciding whether I believed the argument. I don’t. But I should have saved my time and read Sotomayor’s dissent, which makes the case very clearly and in my view persuasively.
What everybody agrees on:
The majority’s theory is that the information obtained by the offer about the arrest warrant was a “means sufficiently distinguishable.” Sotomayor disagrees, and so do I. Running Strieff’s name through the database wasn’t a separate interaction that just happened, by chance, to take place in the spacio-temporal neighborhood of the illegal stop: it was an attempt to execute the purpose of the illegal stop, and has to be seen as a continuation of that stop.
What’s especially annoying is the majority’s use of cites that don’t support its case. They say the facts in Segura v. United States are “similar” to those in Strieff. They are not. In fact (as the majority concedes) the decision to admit the evidence in Segura was reached under a totally different theory, because in that case, unlike this one, the evidence used at trial would have been obtained whether or not the illegal search had taken place; i.e. even the weaker “but for” standard wasn’t met. Then they say the request for the warrant in the course of the illegal stop was a “negligibly burdensome precaution for officer safety,” citing Rodriguez v. United States. In that case, it was remarked that it was legitimate, for the cause of traffic safety, to check for outstanding traffic warrants against a driver stopped for a traffic violation. So far so good. But the decision in that case goes on to say that making the driver submit to a dog sniff of his car is not permissible. “Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”
The majority’s theory is that the officer checked Strieff for outstanding warrants because public safety required it. Sotomayor’s theory is that the officer checked Strieff for outstanding warrants because he had no cause to search Strieff, and wanted some. Which do you find more plausible?
What’s interesting is that the case that best supports the majority’s theory is one they don’t even directly cite: Johnson v. Louisiana. In that case, Johnson was arrested without a warrant for a robbery, brought to the courthouse, and put in a lineup, where he was identified by a witness as perpetrator of a different robbery. The court held that Johnson’s ID in the lineup was admissible even though it resulted from an illegal arrest, because the lineup was ordered separately by the judge after Johnson had been brought in: this “intervening action” was held to be sufficient separation between the illegal arrest and the evidence obtained. What I can’t tell from the decision is: was it just by chance that the victim of the other robbery happened to be present at the lineup for the original robbery? Or was it common practice to arrest people on a hunch and then put them in a bunch of different lineups to see if anyone IDed them as the perpetrator of a crime? If it’s the former, I can sort of understand the Court’s reasoning. If the latter, no way.
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.