The Wisconsin Supreme Court, in a case that is sure to diminish whatever respect the public still holds for it, decided yesterday that a law is just fine if it looks fair on the page, but is not fair as it actually works in the real world.
Justice Michael J. Gableman's opinion in the 5-2 decision (Justices Shirley S. Abrahamson and Ann Walsh Bradley dissented) is comical, but not funny. At issue was a law prohibiting local governments from enforcing residency rules for public employees. The question was whether Milwaukee -- which faces more harm through the loss of residency requirements than other communities do -- could keep its residency rule through "home rule," which allows local governments to make its own rules on matters of local concern.
No, said Justice Michael Gableman, writing for the majority. As long as a law looks like it treats local governments across the state equally -- even though it does not -- the state can adopt legislation superseding home rule. The mere appearance of fairness is enough.
Reality need not count, according to Gableman, "as long as the statute, on its face, uniformly affects cities or villages throughout the State."
Gableman's decision defies logic. Imagine the Legislature adopted a law that all two-legged creatures must have their wings cut off. That looks fair on its face, but in real life, people would have a lot less to worry about than birds.
Or imagine the Legislature adopted a law that all Wisconsin residents be stripped of their common sense. That looks fair on its face, and might do great harm to a great many Wisconsin residents, but Justice Gableman would have nothing to worry about at all.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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