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.

 

 

The Wisconsin Supreme Court gets home rule wrong and right

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

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

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

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

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

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

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

 

 

 

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?

Natural accumulation

Don’t even ask me how I fell down this rabbit hole in the middle of August but I was trying to understand the legal requirements in Wisconsin and other states concerning shoveling snow off the city sidewalk in front of your house.  It turns out there’s no state law requiring this (though there are city ordinances in Madison and Milwaukee to this effect.)

More:  there’s a 1956 Wisconsin Supreme Court case, Walley v. Patake, which holds that a property owner isn’t liable if they fail to shovel the sidewalk abutting their property, and someone falls there and is injured, as long as the snow and ice is “natural accumulation” — that is, it’s a different story if there’s a huge heap of ice on the sidewalk because you piled it there when you shoveled your driveway.  In Hagerty v. Village of Bruce (1978) the Wisco Supremes clarified that even when the landowner is violating a city law by not shoveling, they still don’t take on liability.  The theory here is that the liability for injury on a public walkway belongs to the city, and the city can’t delegate it; the point of the shoveling law is to require landowners to act so as to make injuries less likely, but that’s all; the city is still liable.

In Ohio (Brinkman v. Ross, 1993) you are not even liable when someone slips on the ice on your own property, as long as it’s natural accumulation.  I wonder to what extent this is the case in other states?  I wonder if there’s a law professor somewhere in America who’s an expert on icy sidewalk liability?

 

 

Scalia was right

As Caleb Crain pointed out way back in 2003, Antonin Scalia’s dissent in Lawrence v. Texas, which struck down Texas’s anti-sodomy laws, argues that the majority’s reasoning leaves the federal government without any constitutional way of forbidding gay marriage.

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

I think Scalia meant to weight the contrapositive a little more than the direct implication, but hey, the two are equivalent, and it looks like he was right.

Update:  Just to give this a little more context:  It might look from this excerpt like Scalia is saying “gay marriage is obviously terrible and this decision would make it unconstitutional for Congress to outlaw gay marriage, therefore the decision is wrong.”  But in fact Scalia is responding here not to the Court’s main opinion in Lawrence, but to Sandra Day O’Connor’s concurrence, in which she goes out of her way to explain that her vote here should not be taken as precedent for establishing same-sex marriage as a constitutional right, no way, no how; while “moral disapproval” is not a legitimate state interest, she says rather vaguely that  “other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group,” and that these reasons, whatever they are, mean that laws forbidding same-sex marriage are constitutional.

Scalia’s dissent says, and I paraphrase, “You’re kidding yourself, Day-O —  if there’s no legitimate state interest in forbidding sodomy to same-sex couples while allowing it for opposite-sex couples, then there’s no legitimate state interest in forbidding marriage to same-sex couples while allowing it for opposite-sex couples, and you shouldn’t allow yourself to pretend otherwise.”  And he was right!

 

 

Scott Walker: not toast

Much was made of the WPR/St. Norbert poll released last week, in which 58% of respondents said they’d vote for Scott Walker’s opponent if a recall comes to pass, with only 38% saying they’d vote to keep the Governor in office.  Worth noting the numbers below the top line, though:  in the sample of 482 voters, 34% reported voting for JoAnne Kloppenburg in April’s Supreme Court election, against 27% who said they voted for Prosser.  In fact, those votes were evenly split.  So it’s way, way, way too soon to say that Walker’s behind in a potential recall election, especially with Wisconsin D’s still in search of a candidate.

(Another interesting result from that poll:  people in Wisconsin apparently really like electing their Supreme Court, and in fact would prefer that the prospective justice’s party affiliation be listed on the ballot!)