The Constitutional Challenge to Act 10 is Serious

On Friday, Judge Juan Colas issued a ruling that struck down Act 10, the “Budget Repair Bill,” on the grounds that the law violates the Wisconsin and U.S. Constitutions.  In essence, he held that the law differentiates between entities that represent public employees in collective bargaining — imposing conditions on certain bargaining entities but not others – and that the State had failed to advance a sufficient justification for this disparate treatment.  According to Judge Colas, the differential treatment of bargaining entities violated the First Amendment right of the affected unions to association and expression, and it also violated the Equal Protection Clause.  Judge Colas also held that the law violates the Home Rule provisions of the Wisconsin Constitution by dictating rules for Milwaukee that the law did not apply to other municipalities.

The reaction to the ruling from the Walker Administration – that Judge Colas is a “liberal Dane County judge” — was as hollow as it was predictable.  Some supporters of the Governor view the judiciary as an obstacle to their political agenda.  Therefore, judges who do not agree with the Administration’s legal arguments become, in their mind, opponents who must be demonized (like Dane County Circuit Judge Maryann Sumi) or else targeted with frivolous disciplinary complaints.

Clearly, some supporters of the Walker Administration have a difficult time separating the political debate over Act 10 from the separate legal debate over its contents.

Continue ReadingThe Constitutional Challenge to Act 10 is Serious

Effective Assistance of Counsel and Tribal Courts—A Different Standard?

Virtually none of the U.S. Constitution’s guarantees or prohibitions applies to the actions of Indian tribal governments when those governments are exercising their inherent or retained powers. For this reason, among others, Congress in 1968 passed the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303, which imposes on tribal governments most though not all of the guarantees found in the Bill of Rights and 14th Amendment. After almost 45 years, however, it remains uncertain whether or to what extent ICRA’s statutory guarantees must parallel the interpretations given to the respective constitutional guarantees on which they are based.

Among ICRA’s original provisions is a command that “[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person in a criminal proceeding the right . . . at his own expense to have the assistance of counsel for his defense . . . .” This, of course, is an analog to the 6th Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence,” which the U.S. Supreme Court has interpreted as requiring “reasonably effective assistance,” Strickland v. Washington, 466 U.S. 668, 687 (1984), by “an advocate who is . . . a member of the bar,” i.e., a licensed attorney. Wheat v. United States, 486 U.S. 153, 159 (1988).

In the recent case of Jackson v. Tracy, No. CV 11–00448–PHX–FJM, 2012 WL 3704698 (D. Ariz. Aug. 28, 2012), a federal district court has held that ICRA’s assistance-of-counsel guarantee requires neither that one’s advocate be a licensed attorney nor that the advocate be held to the standard of a reasonably effective attorney.

Continue ReadingEffective Assistance of Counsel and Tribal Courts—A Different Standard?

Why Milwaukee’s Parking Enforcement System Might Be Unconstitutional

When it comes to parking enforcement, the City of Milwaukee has a problem. Local media have concluded from interviews and public records that the City issues parking tickets without paying close attention to whether they are warranted. In 2011 alone, the City reportedly canceled over 38,000 parking tickets, often because they were plainly unjustified. Nearly 8,000 tickets, for example, were issued for “expired” parking meters that in fact had not expired. Given personal experience, I have little doubt that these figures are accurate.

The extremely high number of unwarranted tickets is not an accident. Instead, it appears to be the result of a policy to issue tickets indiscriminately for the singular purpose of revenue enhancement. The City’s manager for parking enforcement practically admits as much; he recently told a local news station that the policy “is to issue the citation and straighten it out later.” Media coverage suggests that the City implements this policy through an informal quota system: Several employees of the Department of Public Works have revealed that supervisors expect enforcement personnel to issue certain numbers of tickets per shift for specified areas, and that supervisors punish those who fail to meet quotas by handing out undesirable shift hours. In other words, enforcement personnel are under the gun; unless they want to work at 3:00 in the morning, they have to issue bushels of tickets. Because this system appears to give credit even for unjustified citations, there is little incentive for personnel to make sure that they issue citations only when deserved. So the high error rate is no surprise. The effect is to impose upon thousands of law-abiding residents the burden of either paying a fine or establishing the absence of a violation. For many, the hassle is worse than the dollar value of the fine.

Continue ReadingWhy Milwaukee’s Parking Enforcement System Might Be Unconstitutional