On Friday, the Wisconsin Supreme Court released two opinions that reflect the court’s new jurisprudential direction. Allow me to focus on the opinion with a much greater discussion of jurisprudence. (The other is State v. Wood, a due process challenge to forced administration of medication in a state-administered facility to a person who had been found not guilty of a crime by reason of mental disease or defect.)
In State v. Smith, the Supreme Court upheld the state’s sex offender registration law for crimes which, in the particular instance, did not have an obvious sexual component. Smith had been convicted of false imprisonment of a minor, which is one of the crimes leading to sex offender registration. Smith brought as-applied equal protection and substantive due process challenges because his act of false imprisonment had no sexual motive or activity.
The majority opinion, written by Justice Ziegler (Law ‘89) and joined by Justices Crooks, Prosser, Roggensack, and Gableman, held that the unambiguous text of the law required Smith’s registration, and that the Legislature had a rational basis for making this so. In reaching this conclusion, the majority relied on two core principles of judicial restraint, summed up in one excellent sentence: “We must afford deference to the words chosen by the legislature . . . .” (¶ 25). The mutually reinforcing principles of deference and textualism are the watchwords of this decision and the majority behind it.
Justice Ziegler reiterated that “a party challenging a statute’s constitutionality. . . must prove that the statute is unconstitutional beyond a reasonable doubt.” (¶ 8). This is a “heavy burden” (id.) and “high burden.” (¶ 18). She used the traditional rational basis test – the statute must be “patently arbitrary” and “bear no rational relationship to a legitimate government interest.” (¶ 12). She quoted the U.S. Supreme Court’s characterization of the rational basis test as “a paradigm of judicial restraint” and said the court “owe[s] great deference to legislative action.” (¶¶ 17-18).
Equally, she looked first and foremost to the text of the statute: “[W]hen a statute’s language is unambiguous, as this one is here, sound principles of statutory construction require that we not look to the title for guidance or instruction” (¶ 27), citing a statute and a case for the proposition. She also collapsed the state constitutional analysis into the federal constitutional analysis, citing a 1989 state precedent that the state and federal clauses are “substantial equivalents.” (¶ 12).
She closed the majority opinion by writing, “[O]ur proper judicial role is one of restraint and deference. Flynn v. DOA, 216 Wis. 2d 521, 529, 576 N.W.2d 245 (1998) (‘Our form of government provides for one legislature, not two.’).” (¶ 38). It was the kind of sentence I would have last read in a Prosser or Wilcox dissent from the Butler era.
The dissent in this case was authored by Justice Bradley, and it criticized the majority for its “unwillingness to provide meaningful review.” (¶¶ 43 and 53). She charges that the majority “abdicates its responsibility” (¶ 44), forsakes “meaningful due process or equal protection review” (¶ 47), “fails to provide meaningful review” (¶ 66), and “refus[es] to test legislation under the equal protection and substantive due process provisions . . . .” (¶ 53). In short, Justice Bradley, joined by Chief Justice Abrahamson, believes in a much less deferential role for the court when it evaluates legislation. That vision had its heyday in Ferdon, when the court used rational basis review “with teeth” and “with bite.” Justice Butler has since been replaced by Justice Gableman, and as long as the court’s balance remains in its current state, the majority has returned to a more humble and traditional view of the court’s role.
Time will tell whether we are moving into a new era of judicial restraint, or perhaps a court that reflects a more right-wing world view.
We will see how restrained the newest members of the court are when the aggrieved party isn’t some guy on a sex offender registry, but rather a member of WMC.
I have to say I am skeptical that any admiration of this jurisprudential logic would survive if the statute in question was a gun-control regulation enacted by a legislature (relying on traditional State police powers) for the compelling state interest of reducing crime and enhancing public safety. Would a claimant against such a statute carry the burden of proving “that the statute is unconstitutional beyond a reasonable doubt”? Any State can assert a rational interest in regulating the firearms outside the context of a well-regulated militia, and any court could say that they “must afford deference to the words chosen by the legislature and cannot conclude that requiring registration [and special storage requirements of firearms] is not rationally related to a legitimate government interest.” If SCOTUS had, in this manner, “returned to a more humble and traditional view of the court’s role”, DC v. Heller would have come out quite differently.
Courts have, at least since the time of Brandeis and Hughes recognized the important difference between regulation of economic activities and regulations that infringe individual liberties. A “humble and traditional view of the court’s role” may be appropriate to economic regulation; such deference to regulations affecting individual liberties is, quite simply, a judicial failure. It was “humble and traditional courts” which sanctioned Jim Crow and post-WWI sedition laws.
The dissent’s contention that the Court abdicated its responsibility has merits; the outcome of this particular case notwithstanding.
There’s no reason to think that a conservative appellate court will necessarily show more restraint that a liberal one. In the course of American history a total of 127 acts of Congress have been declared unconstitutional by the United States Supreme Court. The conservative Rehnquist Court struck down 40 of those acts between 1986-2002. It struck down 33 of those acts between just 1995-2002, a period when in the opinion of most its conservatism was becoming more pronounced and assertive. Who are the true “activists” when it comes exercising judicial review?
One need only read the first two paragraphs of Justice Bradley’s dissent to see how kooky the majority’s opinion is. “Restraint and deference” are simply code words used to confuse and support a decision that lacks any basis in common sense.
A rational person would believe being required to register as a “sex offender” means they committed a sex-related crime. Not so says the majority. It is decisions like this the make the public fear our legal system rather than believe in it.
Thanks to all the readers for your interesting comments. Let me offer a few responses. I think the level of scrutiny appropriate is different, Sean, when we are dealing with a specific constitutional right (like the right to keep and bear arms) than the generic “substantive due process” and “equal protection” analysis.
Prof. Papke, I think you have confused an activist judiciary with an activist Congress! If Congress insists on passing a number of laws that go beyond its enumerated powers or infringe on the constitutional rights of citizens, then the courts’ job is to strike them down (thus upholding the higher constitutional law over and against the lower statutory law). That is different than saying that when the legislative branch operates within its appropriate sphere, the judicial branch should defer to its policy judgments.
Nick, it is not the role of the courts to clean up the possibly sloppy draftmanship of the legislature. You want to talk about legislating from the bench? A ruling in favor of Smith would have functionally amended the law. Rather than saying that those convicted of false imprisonment of a minor must register as a sex offender, as the law does now, it would be rewritten to say those convicted of false imprisonment of a minor who wanted to or did engaged in sexual activity with the minor must register as a sex offender. This case is a perfect example of the “Tootsie the Goldfish” analysis, just with different facts.
Another concern is that categorizing a person as a Sexual Offender may carry additional penalties, such as restrictions in where they can live or occupations they can pursue after release from jail or prison. In the case of actual sexual predators, these restrictions are defended by the fact that sexual predators are highly resistant to rehabilitation or treatment and claims that they need permanent restrictions to protect society at large. But when persons whose crimes are not similarly resistant to rehabilitation or treatment are lumped in with sexual predators, the entire post-incarceration scheme is endangered. Challenges to its purpose gain credence when others are caught-up in its over-broad reach.
This is, of course, a distinct criticism from the question of what constitutes proper jurisprudence, but is an example of another consideration that hyper-deference is likely to miss. Courts have a role beyond merely rubber-stamping legislative decisions.
Thank you for your responses, Daniel. I do not believe there is, within the text of the Constitution a hierarchy of individual rights, some of which require different levels of scrutiny. Especially given that “levels of scrutiny” are not found in the text of the Constitution at all.
Also, I don’t see how Equal Protection is “generic” while the right to bear arms is “specific”; given that everything from kitchen knives to hydrogen bombs are “arms”.
Economic regulations often create zero-sum situations; they are frequently advantageous to some and disadvantageous to others; a deferential level of scrutiny is appropriate for them.
In contrast, protection of individual rights does not create zero-sum situations frequently. My equal protection does not limit another’s equal protection; your right to bear a pistol does not limit my right to bear a pistol. A higher level of scrutiny, and a much less deferential analysis is appropriate for regulations that infringe on individual rights.
Here is a link to an article published in Daily Beast. http://www.thedailybeast.com/blogs-and-stories/2010-03-20/have-sex-offender-laws-gone-too-far/
Apparently, Wisconsin is not the only state with the problem of sex offender registries that go too far. Putting aside the legal challenge, there is a good policy argument against the endless expansion of these lists, and of course the obvious intrusion into the lives of former offenders.
When many of the people on a sex offender list are not sex offenders, the list itself loses its value as a tool for citizens and law enforcement. It is, sadly, yet another example of a terrible trend these days towards putting on a big show of getting tough on sex crimes, or crimes in general, while doing very little to actually protect people from real threats to their safety.