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.)

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.”

 

 

 

Landlord rights and Wisconsin home rule follies

The era of small government remains over in Wisconsin, as the state legislature continues to chew away at municipal self-governance.  This time:  cities are prohibited from requiring regular inspections of rental properties.

Just to remind you again what the Wisconsin Constitution says on this point:

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.

Over the years, the state has accorded to itself the power to declare just about anything a city might do “of statewide concern,” rendering the Home Rule Amendment essentially null.  The statewide effect of Beloit requiring landlords to subject their rental properties to safety inspections every once in a while seems pretty minor to me.  I guess that’s why I’m not on the Wisconsin Supreme Court.

And yes, I get that there’s lots of interpretation of the Commerce Clause that runs roughly along the same lines.  And yes, I get that a strong interpretation of home rule would keep states from invalidating discriminatory municipal ordinances unless they ran afoul of federal law.  But these judges say they’re pure custodians of the Constitutional text.  It gets up my nose when they act as if it doesn’t exist.

Good piece about the erosion of home rule from the League of Wisconsin Municipalities.

Previous blog post where I complain at length about previous SC-WI home rule jurisprudence.

 

“Worst of the worst maps”: a factual mistake in Gill v. Whitford

The oral arguments in Gill v. Whitford, the Wisconsin gerrymandering case, are now a month behind us.  But there’s a factual error in the state’s case, and I don’t want to let it be forgotten.  Thanks to Mira Bernstein for pointing this issue out to me.

Misha Tseytlin, Wisconsin’s solicitor general, was one of two lawyers arguing that the state’s Republican-drawn legislative boundaries should be allowed to stand.  Tseytlin argued that the metrics that flagged Wisconsin’s maps as drastically skewed in the GOP’s favor were unreliable:

And I think the easiest way to see this is to take a look at a chart that plaintiff’s own expert created, and that’s available on Supplemental Appendix 235. This is plain — plaintiff’s expert studied maps from 30 years, and he identified the 17 worst of the worst maps. What is so striking about that list of 17 is that 10 were neutral draws.  There were court-drawn maps, commission-drawn maps, bipartisan drawn maps, including the immediately prior Wisconsin drawn map.

That’s a strong claim, which jumped out at me when I read the transcripts–10 of the 17 very worst maps, according to the metrics, were drawn by neutral parties!  That really makes it sound like whatever those metrics are measuring, it’s not partisan gerrymandering.

But the claim isn’t true.

(To be clear, I believe Tseytlin made a mistake here, not a deliberate misrepresentation.)

The table he’s referring to is on p.55 of this paper by Simon Jackman, described as follows:

Of these, 17 plans are utterly unambiguous with respect to the sign of the efficiency gap estimates recorded over the life of the plan:

Let me unpack what Jackman’s saying here.  These are the 17 maps where we can be sure the efficiency gap favored the same party, three elections in a row.  You might ask: why wouldn’t we be sure about which side the map favors?  Isn’t the efficiency gap something we can compute precisely?  Not exactly.  The basic efficiency gap formula assumes both parties are running candidates in every district.  If there’s an uncontested race, you have to make your best estimate for what the candidate’s vote shares would have been if there had been candidates of both parties.  So you have an estimate for the efficiency gap, but also some uncertainty.  The more uncontested races, the more uncertain you are about the efficiency gap.

So the maps on this list aren’t the 17 “worst of the worst maps.”  They’re not the ones with the highest efficiency gaps, not the ones most badly gerrymandered by any measure.  They’re the ones in states with so few uncontested races that we can be essentially certain the efficiency gap favored the same party three years running.

Tseytlin’s argument is supposed to make you think that big efficiency gaps are as likely to come from neutral maps as partisan ones.  But that’s not true.  Maps drawn by Democratic legislatures have average efficiency gap favoring Democrats; those by GOP on average favor the GOP; neutral maps are in between, and have smaller efficiency gaps overall.

That’s from p.35 of another Jackman paper.  Note the big change after 2010.  It wasn’t always the case that partisan legislators automatically thumbed the scales strongly in their favor when drawing the maps.  But these days, it kind of is.  Is that because partisanship is worse now?  Or because cheaper, faster computation makes it easier for one-party legislatures to do what they always would have done, if they could?  I can’t say for sure.

Efficiency gap isn’t a perfect measure, and neither side in this case is arguing it should be the single or final arbiter of unconstitutional gerrymandering.  But the idea that efficiency gap flags neutral maps as often as partisan maps is just wrong, and it shouldn’t have been part of the state’s argument before the court.

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.

 

 

In which South Dakota can’t actually do that

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.

Update: (July 2017)  The South Dakota legislature has passed a law bringing a state ethics board into existence, but one much weaker than the one the referendum was going to enact.  Good-government groups in SD are preparing a new referendum for the 2018 ballot; I guess, even if the legislature claims it can keep the public from vetoing its law, it can’t keep the public from bringing into existence an entirely new oversight body, which they’ll no doubt kill in its crib in January 2019, and so on, and so on….

Utah v. Strieff

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:

• Evidence need not be excluded just because it would not have been obtained but for an illegal stop.  If the officer had stopped Strieff without reasonable cause, and in the course of their conversation, someone wandered by, pointed at Strieff, and said “that’s the guy who robbed me yesterday!” it would be OK to use the accusation as evidence even though it wouldn’t have happened had Strieff not been detained.  “But for” is necessary for exclusion, but not sufficient.
• The criterion is, rather, supposed to be “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

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.

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.

 

 

 

 

 

 

Is a search a search?

(Continued from yesterday’s post.)

Scalia understood, when he needed to, that words changed their meaning, and stretched to accommodate cases that didn’t exist for the founders.  What, in the sense of the Fourth Amendment, counts as a “search”?  Scalia took up this lexical question in Kyllo vs. U.S, writing that infrared scanning of a house to detect excess heat (generated, the police correctly inferred, by a marijuana greenhouse within) did indeed constitute a search.  This is not the kind of search the Framers contemplated.  Nonetheless, says Scalia:

When the Fourth Amendment was adopted, as now, to “search” meant “[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.” N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)

How to read this?  The written definition can be read to include viewing a house from the outside, and indeed, Scalia brings it up in this context:

One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a “search”¹ despite the absence of trespass, is not an “unreasonable” one under the Fourth Amendment.

But visual inspection of a house has not been classified as search by the Court — “perhaps,” Scalia says, “in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional.”

In fact, it’s pretty clear from other Scalia opinions that he chooses a meaning for the word “search” which is simultaneously more restrictive than the dictionary definition —  it excludes visual inspection of a house — and more inclusive than the contemporary plain-language meaning.  To push a stereo away from the wall and look at its serial number, as in Arizona v. Hicks, is not to “search” the stereo; it’s not even clear whether, in standard English, a stereo can be searched, unless by pulling open the casing and digging through its insides.  But in Scalia’s majority opinion there, the moving of the stereo is what creates the search:

A truly cursory inspection – one that involves merely looking at what is already exposed to view, without disturbing it – is not a “search” for Fourth Amendment purposes, and therefore does not even require reasonable suspicion… [t]aking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL’S suggestion, post, at 333, the “distinction between `looking’ at a suspicious object in plain view and `moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent – serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”

So a “search,” for Scalia, requires observation of something that might reasonably be expected to be private, but doesn’t require looking inside of the thing searched.  I think that’s a pretty good definition; but it’s not what’s in the dictionary, it’s not the way we use the word in plain Enlglish, and Scalia makes no claim that it’s what was in the Framers’ minds.  It’s a definition you choose in order to achieve a goal, the goal of a workable evidential rule that suits our — or someone’s — sense of justice.

And that’s why it grates when Scalia says “[a] search is a search.”  So matter-of-fact, so direct; but so utterly opposite to what’s actually happening!  He should have said “A search is what we define a search to be.”

In light of Scalia’s take on statistical sampling, his rejection of Powell’s dissent is interesting:

As for the dissent’s extraordinary assertion that anything learned through “an inference” cannot be a search, see post, at 4-5, that would validate even the “through-the-wall” technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences)

To measure radiation emanating from the outside of a house, and to infer by technological means something about the contents of the interior that can’t be directly observed:  this, for Scalia, is a search.  To count all the inhabitants of a city you can find, and to infer by technological means something about the people who couldn’t be directly observed:  that, Scalia says, isn’t counting.  In Kyllo, Scalia is happy to speculate about future technologies that will make his view more obviously correct, as soon as they exist (“The ability to “see” through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development.”)  In Commerce, his vision of technological progress in statistics is decidedly more pessimistic.  Why?

Antonin Scalia thought jurisprudence was more like math than it really is

I didn’t mean for Antonin Scalia to be a major character in my book.  I was just going to write about an interesting math snafu that shows up in one of his capital punishment opinions.  But then that led quite naturally into talking about “formalism,” which many mathematicians use (or think of themselves as using) as their everyday philosophy of math, just as Scalia used it (or thought of himself as using it) as his everyday philosophy of jurisprudence.

Legal reasoning is not much like math.  But Scalia sometimes acts like he thinks it is.  That’s what makes him an interesting figure to me.  He writes down arguments which he presents as derivations axioms — as if the words of the Constitution determined the resolution of the legal question, so long as you were willing to apply them methodically and impartially in the correct sequence.

But surely that’s wrong!  The words of the Constitution underdetermine a lot of really interesting questions.  Richard Posner:

Most of the cases the Supreme Court agrees to decide are tossups, in the sense that they cannot be decided by conventional legal reasoning, with its heavy reliance on constitutional and statutory language and previous decisions. If they could be decided by those essentially semantic methods, they would be resolved uncontroversially at the level of a state supreme court or federal court of appeals and never get reviewed by the Supreme Court.

I have written before about the Court’s decision that statistical sampling in the Census is in conflict with the relevant Constitutional clause:

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.

Scalia’s opinion concentrates on the word “enumeration,” which he argues does not mean “determining the number of,” but rather should be understood in the more restrictive sense of “counting one by one.”  And he has some good contemporary sources for this reading!  You get a nice satisfying no-nonsense feeling, reading this opinion.  Then you start to think about what it actually says. Is Scalia declaring that constitution requires that the census count people one by one?  Can’t be — for the last fifty years the census has been conducted mostly by mail.   Does he think the census has to enumerate something, but it doesn’t have to be people?  Could it be anything?  Could it be “all property owners?”  Could it be “all non-atheists?”

Note, too, that when you fill out the census form, you write down the number of people in your household, then you fill out information for each person.  When the numbers are compiled, the computer, surely, adds up the numbers from each form to get an answer.   In other words:  a mathematical process other than enumeration-in-the-narrow-sense whose output is an approximation to the total number of people in the United States.  Kind of like statistical sampling.  Except not as good an approximation.

I don’t think we should consider that process unconstitutional.  It seems reasonable to consider it an enumeration, despite the inconsistency with some dictionary definitions.  Because dictionary definitions aren’t mathematical definitions.  A mathematical object is exactly what it is, and nothing else.  But when we read a word, we make a choice.

Scalia makes one choice: we could also opt for a more expansive but equally common-sensical definition of “enumerate” as “determine, to the extent possible, the number of,” which permits statistical sampling aimed at counting the “whole number” of Americans.  That “whole” is a word in the Constitution too, with as much binding force as “enumeration.”  It doesn’t appear in Scalia’s opinion.

Am I saying Scalia’s opinion in Dept. of Commerce vs. U.S. House of Representatives was wrong?  No; I’m saying merely that it’s not the kind of opinion it presents itself as being.  It is not determined by the text before it.  It relies, elsewhere, on an argument from pragmatism:  if statistical sampling is constitutionally permissible, then legislatures might authorize it, and the resulting partisan wrangling over methodology would create hard cases for future courts.  These are fair arguments, but they’re not textual arguments.  The argument admits that we make choices when deciding what words mean, and we should let our choices be guided by their likely consequences.

But no, I don’t think those arguments are obviously wrong.  It is pretty rare to find Scalia being obviously wrong.  Except in the following higher-level sense.  Scalia seldom concedes that the questions he faces are authentically difficult.  He — or at least the character of “Scalia” he plays in the opinions — lacks the humbleness appropriate to the task.  His habit is to present his conclusion as if it’s obviously right, the way a mathematical proof, once you understand it, is obviously right.  That is obviously wrong.

Update:  Commeter aaaatos makes a really important point, one I meant to address directly in the post.  He writes:  “what makes the legal system so useful to mankind is the fact that therein law is treated in a formalistic way as much as possible, i.e. as if it were mathematics.”  This points to another plausible account of Scalia:  that he didn’t actually believe law was very much like math, but felt it was best practice for judges to pretend to believe that.  That’s what I was getting at with the distinction between Scalia the person and “Scalia,” the persona he adopts as a writer of opinions.

Why pretend?  Partly because it enhances the authority of the process; partly because pretending to believe it helps us be “as formalist as possible,” mildly constraining the inevitably biased choices we make when we read words and try to obey them.