Tag Archives: wisconsin

Home rule in Wisconsin: the or and the and

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

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

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.

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

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

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

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

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

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

Thus:

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

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

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

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

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

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

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

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

and

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

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

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

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

 

 

 

 

 

 

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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?

 

 

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The soundness of the Wisconsin Retirement System

A while back I was talking to some hedge fund dudes with tangential involvement with institutional pensions, and I asked them, “hedge fund dudes, how come the Wisconsin Retirement System has done so well through the crisis while other state pension systems are colossally FUBAR?” and they said “the real reason is that decisions about the pension aren’t made by a bunch of legislators with political commitment, there’s a non-political board and most of the important decisions are made by financial professionals.”

This week the state legislature tried to replace that board with one composed solely of legislators.  The change, after public outcry, has now been rolled back.  Yay for my retirement, I guess?

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Doctoral programs can have a strong influence on the weak-minded

Daniel Drezner:

First, I cannot stress enough the cult-like powers of a PhD program. Doctoral programs can have a strong influence on the weak-minded. Even if you’re pretty sure what you want going into a program, that can change as you’re surrounded by peers who want something different. You might think you’re strong-willed, but day after day of hearing how a top-tier research university position is the be-all, end-all of life can have strange effects on your psyche.

I really do feel this is something we handle well at Wisconsin.  Our Ph.D. graduates go on to a wide variety of positions, some in primarily teaching colleges, some in research institutions, some in industry, some in government.  We do not consider the North American research university the be-all and end-all of life.  We are not just trying to produce clones of ourselves.  We really do strive to help each of our students get the best job among the jobs they want to get.  

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Are UW-Madison professors underpaid?

It’s well known that UW-Madison salaries are notably lower than those at peer institutions, at every level of seniority.  But wait, says Chris Rickert in the Wisconsin State Journal, that doesn’t necessarily mean our faculty is underpaid!

At UW-Madison, assistants are paid, on average, about $82,000 a year, associates about $93,000 and full professors about $123,000 — ranking them 10th, seventh and 12th, respectively, in salary compared to 11 other state-identified peer institutions, according to data from the university’s Academic Planning and Institutional Research office.

Obviously, more full professors means more people in line for full-professor salaries and greater pressure on the budget for professorial salaries overall. At UW-Madison, that’s no small detail, as about 59 percent of UW-Madison professors have attained full status, according to the university’s Data Digest.

By contrast, figures from the American Association of University Professors show that, on average, only about 31.5 percent profs at all universities and about 30.8 percent at public universities are full professors.

This is a really good point!  You could imagine that maybe our pay isn’t underscale at all — maybe we just promote people faster, so that our full professors are less senior and thus make less.  That’s Rickert’s take:

I’m left to wonder whether the university has adopted that old human resources trick of placating employees by inflating their titles more than their pay.

In an era of declining state support, this would help keep a lid on the cost of higher education while simultaneously allowing university officials to complain about how poorly paid are its best and brightest.

But this can actually be checked!  You can use the Chronicle of Higher Education Faculty Salary Survey to get the mean salary for any university at any seniority level, and the number of faculty members at each seniority level, and compute the overall faculty mean that way.  I did this for a few of our peer institutions and got:

UIUC UW Iowa OSU
full $145 816 $123 755 $135 494 $139 943
assoc $96 556 $93 252 $90 407 $94 763
asst $90 405 $82 363 $77 329 $85 502
$117,133 $106,618 $104,595 $111,172

So the mean UW tenure-track gets paid slightly more than people at Iowa, but notably less than counterparts at Ohio State and Illinois.

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Full professors make more money than bus drivers

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

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

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

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

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

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

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

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

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

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Wisconsin is not a blue state

Another Wisconsin election day!  By the polls — and I trust the polls, absent any reason not to — incumbent governor Scott Walker is likely to squeeze by with a narrow win.  If you don’t live in Wisconsin, how much should you care about this?  A lot, says Slate’s Betsy Woodruff, who calls this race “The Most Important Race in America.”

Winning statewide as a conservative Republican in Wisconsin isn’t easy. Even though five of its eight congressmen are Republicans and the GOP controls its statehouse, Wisconsin is a very blue state. It’s historically been a union stronghold, and it hasn’t gone Republican in a presidential race since 1984. For progressives, the Republicans’ fragile hold on state government is an insult, an affront that should be corrected.

Wisconsin is not a very blue state.  In those 30 years since 1984, a Republican has been governor for 19 of them.  In both 2000 and 2004, the Democratic candidate won Wisconsin’s electoral vote by less than half a percentage point.  In 2012, Obama won Wisconsin by 7 points, in a year he won nationally by 4 points.  So Wisconsin, in Obama’s home turf of the Upper Midwest, was slightly bluer than the country that year.

But it’s not California or Maryland.  It’s not even New Jersey.  It’s a state that’s half Republican and half Democratic.  (See also:  “It’s a recall, not an omen.”)  That’s why elections here are close.  Despite what Woodruff writes, neither liberals nor conservatives think they have a right to own the state.  Walker has the advantage of incumbency and he’s probably going to win.  That’s important for his dreams of a Presidential run; but I don’t think it has much to say about national politics.

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Why I’m voting no on the Wisconsin transportation referendum

All attention is focused on Mary Burke and Scott Walker, so I didn’t even realize there’s a state ballot proposition in next week’s election.  And it’s not a trivial one, either.

Question 1: “Creation of a Transportation Fund. Shall section 9 (2) of article IV and section 11 of article VIII of the constitution be created to require that revenues generated by use of the state transportation system be deposited into a transportation fund administered by a department of transportation for the exclusive purpose of funding Wisconsin’s transportation systems and to prohibit any transfers or lapses from this fund?”

Mary Burke supports this.  So does Governor Walker.  The bill to put the referendum on the ballot was passed by large majorities of both houses.  “Yes on 1” has an organized campaign and a snappy website; as far as I can tell, there is no such thing as “No on 1.”

But I’m voting no.  I don’t expect every dime of people’s property taxes to support upkeep of residential infrastructure.  I don’t think the sales tax should be restricted to promoting Wisconsin retail.  I think money is money and it’s the job of the legislature, not the constitution, to decide how money can best be raised and where in the state it’s most needed.

The amendment prevents gas taxes and vehicle registration fees from being used to fund schools and hospitals and police, but it doesn’t prevent other revenue sources from being raided to fund our highways and bridges.  And that’s what’s actually happening right now; the current administration takes $133 million from the general fund to fund transportation in the current budget.  I’m not sure why transportation, out of all state projects, ought to enjoy a special status:  allowed to draw money from the general fund, but constitutionally prohibited from releasing any back.

The Yes on 1 FAQ points out that many states around the country have constitutional language enforcing segregation of the the transportation fund.  I looked at a few of these, and it’s true!  But those provisions are of a rather different nature.  California’s constitutional provision requires that 25% of the money go to public transportation.  In Minnesota, it’s 40%.  Our referendum has no such restriction, requiring only that the money go to things funded by the DoT.  The Yes on 1 FAQ points out, correctly, that “Wisconsin’s segregated transportation fund is the sole source of state funding for the entire transportation system – highways, air, rail, transit, harbors, bicycle and pedestrian facilities.”  Pretty weak sauce — the fund will not be prohibited from funding other forms of transportation.  Unless an enterprising governor splits off transit into a separate department, that is.  (Ohio’s Constitution, by the way, already forbids gas taxes and license fees from aiding mass transit.)

The amendment establishes one class of spending and taxing as privileged above all the rest.  It shouldn’t be part of our state constitution.

Links:

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Is the two-Burke ballot the new butterfly ballot?

Scott Walker’s opponent takes on the WEDC:

BURKE:  One other area outside of that that people really should take a look at is the Wisconsin Economic Development Corporation, which was a nonprofit, public-private corporation created in 2011 which Governor Walker used to make himself the chair of. What’s most interesting is that Governor Walker’s experience in private business is in selling warranties for IBM and doing blood drives and fund-raising for the American Red Cross. While these are both worthy positions and individuals who do them obviously are working to build a life, that doesn’t give someone the experience necessary to make themselves a chair of a venture capital firm. Because that’s what it is. They’re giving away private taxpayer dollars to public businesses. We would end that practice.

Except that’s not Mary Burke; it’s Robert Burke, a lifelong Republican from Hudson who switched to the Libertarian party to run for governor.  Burke talks in the interview about how he hopes the “name recognition” — misrecognition? — he draws from the Mary Burke campaign will help him get votes.  The question is:  will he get votes from people who like libertarianism, or miscast votes that are actually meant for her?

Are you wondering whether Burke the Libertarian is running precisely in order to siphon votes from Burke the Democrat in this way?  I was, too, but I have to admit that the linked interview really does make him sound like a sincere libertarian dude who just found out Republicans dig market distortions as much as Democrats do.

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Sympathy for Scott Walker

The Milwaukee Journal-Sentinel suggests that the slow pace of job creation in Wisconsin, not recall campaign shenanigans, may be Scott Walker’s real enemy in his upcoming re-election campaign:

In each of Walker’s first three years, Wisconsin has added private-sector jobs more slowly than the nation as whole, and the gap is sizable. Wisconsin has averaged 1.3% in annual private-sector job growth since 2010; the national average has been 2.1%. Wisconsin’s ranking in private-sector job growth was 35 among the 50 states in 2011, 36 in 2012 and 37 in 2013.

Combining the first three years of Walker’s term, the state ranks behind all its closest and most comparable Midwest neighbors: Michigan (6 of 50), Indiana (15), Minnesota (20), Ohio (25), Iowa (28) and Illinois (33).

I think this is slightly unfair to Walker!  Part of the reason Michigan is doing so well in job growth since 2010 is that Michigan was hammered so very, very hard by the recession.  It had more room to grow.  Indiana’s unemployment rate was roughly similar to Wisconsin’s in the years leading up to the crash, but shot up to 10.8% as the economy bottomed out (WI never went over 9.2%.)  Now Indiana and Wisconsin are about even again.

But I do mean slightly unfair.  After all, Walker ran on a change platform, arguing that Jim Doyle’s administration had tanked the state’s economy.  In fact, Wisconsin weathered the recession much better than a lot of our neighbor states did.  (The last years Wisconsin was above the median for private-sector job growth?  2008 and 2010, both under Doyle.)   There’s some karmic fairness at play, should that fact come back to make Walker look like a weak job creator compared to his fellow governors.

 

 

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