Wisconsin teen Zachary Ziolkowski won’t be allowed to allowed to vote Tuesday, since his 18th birthday is Wednesday. Most comments that I’ve seen online have been critical of the teen for even trying, and the Wisconsin Government Accountability Board ruled against him. But he has a credible argument.

The 27th Amendment states that “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” And Wisconsin Statute 6.02 provides that “every U.S. citizen age 18 or older who has resided in an election district or ward for 28 consecutive days before any election where the citizen offers to vote is an eligible elector.” Section 6.05 goes on to say that this means “any person who will be 18 years old on or before election.

But, you say, Mr. Ziolkowski doesn’t “turn 18” until the day after the election. After all, he won’t get a birthday cake until Wednesday, November 5, and his birth certificate apparently says that he came into the world on November 5, 1996.

Of course, the matter is further complicated by the fact that most people are not born at the stroke of midnight. If someone was born at 12:01 AM on November 4, 1996, then there is no question that they are 18 years old on election day. If the polls open at 8:00, then they are 18 years and 7 hours old, clearly old enough to vote. But what about the prospective voter who was born at 11:59 PM? That person, even if they show up at closing time, has not been around for eighteen years. They are only 17 years, 364 days, and 20 hours old.

Most people would recognize that the kid born at 11:59 PM has the right to vote. Mathematically, that person is not 18 years old. But we need to draw the line somewhere, and most people assume that we draw the line with the birthday: When you wake up on your 18th birthday, you are 18 years old. That’s where the Wisconsin Government Accountability Board decided to draw the line.

But Mr. Ziolkowski has a pretty credible argument that the line should be drawn elsewhere. And the Social Security Administration, among others, agreed with him when it was called upon to decide whether a girl was entitled to social security benefits for the month of November 1962. The girl was born on December 1, 1944, and “turned 18,” under the common parlance, on December 1, 1962. She was collecting death benefits until 18. She was 17 years old the entire month of November, so one would think that she should collect benefits for that month. But the Social Security Administration ruled against her. It held that “a person attains a given age on the day before his corresponding birthday, i.e., the anniversary of his birth corresponding to that age.” In this case, the girl attained the age of 18 on November 30, the day before her birthday. Therefore, she was not entitled to benefits for November.  (Lest you think the government was being heartless to the poor girl, they recognized that the same rule should apply for the more common situation of calculating when benefits start, which they noted would be the day before the retiree’s 62nd birthday.)

The Social Security Administration noted that this rule “has been applied consistently by the courts.” It also noted that the rule was cited by both Blackstone and Kent. Interestingly, Blackstone’s phraseology is somewhat ambiguous:

So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person’s birth, who till that time is an infant, and so styled in law.

Blackstone’s Commentaries, page 92 (1915 edition)

Kent puts it this way: “The age of twenty-one is the period of majority … and that age is completed on the beginning of the day preceeding the anniversary of the person’s birth.”
Kent’s Commentaries, Vol. 2, page 265 (1860 edition).  Kent cites four cases for this proposition, two British cases and two American cases:

Anon. 1 Salk. 44. 1 Ld. Raym. 480, Sir Robert Howard’s case, 2 Salk. Rep.. 625, Hamlin v. Stevenson, 4 Dana’s Kentucky Rep. 597, and State v. Clarke, 3 Harr. Del. R. 557.

I didn’t find the full text of any of these cases online, but there is a nice summary of the Hamlin v. Stevenson case available here:

Stevenson owed Hamlin a sum of money which he refused to pay. Hamlin who was still an infant started this action against Stevenson to recover the debt. Stevenson had no real defense on the suit and so filed a dilatory defense to the effect that Hamlin was an infant and therefore ought to bring suit by a “next friend” according to the requirements of the court. It happened that Stevenson made this plea on the day preceding Hamlin’s twenty-first birthday and this was also the day of the trial. The question at issue was whether Hamlin had reached his majority on that day. Chief Justice Robertson gave the opinion of the Court: “It is the common law that a person is twentyone years old on the day preceding the twenty-first anniversary of his birth. Therefore, Hamlin was of age on the day when the plea was filed, and when the issue upon it was tried. Consequently he had the right to prosecute the suit in his own name without the intervention of a friend.

The Social Security Administration’s decision also cited two American cases, both of which are available online, United States v. Wright, 197 Fed. 297 (8th Cir. 1912), and Frost v. State, 45 So. 203 (Ala. 1907).  The Wright case states the rule very clearly, “an infant becomes of full age the first moment of the day before his twenty-first anniversary.”

It’s not surprising that Mr. Ziolkowski’s father happens to be an attorney. But according to the news item, he learned about the old common-law rule ” in his high school business law class.” At it certainly looks like he’s absolutely right.

The Wisconsin Legislature could have used the word “birthday” in the election statutes but did not do so. Elsewhere in the Wisconsin Statutes, the Legislature does use the word “birthday.” For example, under Wisconsin Statutes 938.18, a juvenile can be tried as an adult in certain cases when the offense took place “on or after the juvenile’s 15th birthday.” There’s a strong argument to be made that the phrase “age 18 or older” in the statute should be interpreted under the common law.

The Wisconsin Supreme Court has stated:

A statute does not change the common law unless the legislative purpose to do so is clearly expressed in the language of the statute. Id. To accomplish a change in the common law, the language of the statute must be clear, unambiguous, and peremptory.

Fuchsgruber v. Custom Accessories, Inc., 244 Wis.2d 758, 2001 WI 81, 628 N.W.2d 833 (2001).

Also, this isn’t really an issue of Wisconsin state law. As noted above, 18 year olds have the right to vote under the federal constitution. So the federal interpretation, such as that made by the Social Security Administration, seems compelling.

I’ll be an election judge in Minnesota on Tuesday. If you were born on November 5, 1996, and you walk into my precinct, this is above my pay grade. I’m going to call the county before I hand you a ballot. But I hope they say yes.

For further complications involving people who cross the International Date Line, there is a fictional case discussing the subject.  I believe it was in the book More Uncommon Law, but it might have been in the first volume, Uncommon Law: Being 66 Misleading Cases.

This 1833 Democratic cartoon shows Democrat Andrew Jackson destroying the Devil’s Bank. Times have changed. Wikipedia Illustration.

Even though I’ve always been a Republican, I always believed that most Democrats want to “stand up for the little guy.”  Their policies actually hurt the little guy, but at least their heart is in the right place, and their motives are pure. Or so I used to believe.

Maybe that’s still true of some Democrats, but it’s becoming less and less common. I first realized this when I started to see how many ties there were between big business and the Democrats. At first, I dismissed this as “country club liberalism.” So the argument goes, the wealthy feel guilty about their ill-gotten lucre, and to atone for their sins, they support liberal causes. But then, I started to notice that it’s generally the biggest of the big that benefit from Democratic policies. If you’re a large bank or a large insurance company, or even a large polluter, you’re well capitalized, and you can bear the regulatory burdens as a cost of doing business, and then simply pass those costs on to your customers.

But if you’re a small bank, or a small insurance company, or even a small polluter, you don’t have sufficient capital to bear those regulatory burdens. As a result, you go out of business. Or, if you’re lucky, one of your well capitalized competitors buys you out. To your former competitors, the regulatory burdens are a non-issue. They simply pass those costs along to their customers. And now, as an added bonus, they don’t have to worry about competition.

This point was driven home to me when I recently happened to look at the Campaign Finance reports filed this year by my legislator, Rep. Alice Hausman. I happened to be looking at those reports because of an address mix-up, as I previously reported on this blog.

According to Rep. Hausman’s campaign website, the legislator believes in “investing in hard-working families and middle-class Minnesotans.” She believes in a livable wage, affordable housing, and, ironically enough, relieving the burden of debt on college students.  Her legislative website contains a press release about fighting financial scams.

In short, she has concern for the little person, she recognizes the burden of debt, and she’s worried about financial scams.  But one incongruous name kept showing up on her campaign finance reports, that of law firm Messerli & Kramer. In 2014, she received a contribution of $250 from Messerli & Kramer lobbyist John Apitz. During 2013, Apitz had also contributed another $250, and Messerli & Kramer lobbyist Ross E. Kramer contributed $250. In addition, the Messerli & Kramer Political Action Committee had donated  $250 to her campaign coffers. So in just over 18 months, the law firm was responsible for a thousand dollars in the legislator’s war chest.

A lot of little people probably recognize the name Messerli & Kramer.  They’re very likely to recognize that name if they are worried about financial scams or the burden of debt, because Messerli & Kramer is one of the state’s largest debt collectors.  And they’ve been called on the carpet many times for their practices in collecting those debts.

Like any other business, Messerli & Kramer  has a right to give money to politicians. The Citizens United case makes clear that they have that right.  But the name stands out like a sore thumb in support of someone who supposedly supports the little guy.

Messerli & Kramer is a prestigious law firm with offices in Minneapolis, St. Paul, and Milwaukee.  Most little people don’t know the names of prestigious law firms, but anyone in Minnesota who has gotten behind on a car payment or a credit card bill probably knows the name Messerli & Kramer, since the firm’s Plymouth office operates a high-volume debt collection practice. In fact, because the firm does such a high volume of business, it has resorted to outsourcing to a company in Birmingham, Alabama, simply to mail out the huge volume of correspondence.  They send out so many collection letters that their own office can’t handle the volume.

My personal involvement with Messerli & Kramer dates back to 2002 when I was hired by a woman who needed to sort out a mess involving her Discover Credit Card. She was being sued in Anoka County, and Discover was represented by that friend of the little guy, Messerli & Kramer. I was appalled by the tactics employed by Messerli & Kramer. Messerli and Kramer attorneys made false statements in an affidavit in order to obtain a default judgment. I had to go to court and get the default judgment set aside. Then, Messerli & Kramer failed to properly respond to discovery.  The judge in the case, District Judge Sharon Hall, found that the plaintiff offered an affidavit containing false statements, failed to comply with court rules, and failed to cooperate in the discovery process.

Judge Hall set aside the default judgment, and held that the firm’s misconduct was so egregious as to warrant simply tossing out the plaintiff’s case. She also awarded my attorney fees.

Dissatisfied with this turn of events, Messerli & Kramer took the case to the Minnesota Court of Appeals. In 2004, the Court of Appeals affirmed, and awarded my attorney fees on appeal.

In 2007, the Minnesota Attorney General filed a lawsuit against Messerli and Kramer. The state’s 38-page complaint referred to my earlier case, as well as numerous other cases of misconduct by the law firm in its collection activities. That complaint noted that Messerli & Kramer is involved in the collection of student loan debt, the very burden that Rep. Hausman’s website professes concern.

Banks, credit card companies, and student loan lenders are entitled to legal representation. But Messerli & Kramer has a documented history of abuses in carrying out those representations.

Many middle-class Minnesotans instantly recognize the name of Messerli & Kramer. And if they live in Roseville, Falcon Heights, Lauderdale, and St. Paul, they’re probably represented in the legislature by Rep. Alice Hausman. Can they turn to their legislator for support when abuses occur? Can they turn to the legislator who accepted a thousand dollars in campaign contributions from the very firm that is hounding them?

Unfortunately, voters in other districts encounter the same problem, and it doesn’t matter whether your representative is a Republican or a Democrat.  The Messerli and Kramer cash flows freely, and they’re happy to give money to Republicans as well as Democrats.  Messerli and Kramer’s political contributions can be found at FollowTheMoney.org,  That site reveals that over the last 18 years, they gave over a quarter of a million dollars to politicians, with little regard for the politician’s views.  Democrats seem to have received a slim majority of their cash, but Republicans are well represented as well.  In 2002, they gave to Republican Tim Pawlenty.  In 2014, they once again had the checkbook out, this time giving to Democrat incumbent Mark Dayton.

Not too surprisingly, back in 2002 (about the same time they were filing false affidavits in Anoka County), they also donated to Democrat Roger Moe, who was running against Pawlenty.  That same year, they donated to Rep. Rich Stanek, a Republican, who currently serves as the Hennepin County Sheriff, the guy who needs to execute the writs against the people that Messerli and Kramer is suing.

In 2006, they gave to ultra-conservative Republican Jim Abeler.  But political ideology didn’t stop them from giving.  The same year, they also donated to ultra-liberal Democrat Ellen Anderson.

Nobody has done anything illegal.  The Citizens United case gives them the right to give money to Representative Hausman, or to another politician with opposing views.  It even gives them the right to donate to both sides, which appears to be exactly what they are doing.  But the voters ought to know about it and decide in the polling place whether this is just plain wrong.

This post expresses the opinions of the author, Richard P. Clem, who prepared and paid for it.  This post is not authorized by any candidate or candidate’s committee.

A hundred years ago this evening, a bomb exploded in St. Patrick’s Cathedral in New York. One person was injured, and the New York Evening World had an extra edition with this banner headline on the street the same evening.

Despite the size of the headline, I had never heard of this incident, and it’s barely mentioned in the historical record.

The rector of the Cathedral, Msgr. Michael Lavelle, (1856-1939) is quoted as describing it as “a small bomb. It did little actual damage outside of splintering some of the pews and tearing a hold in the floor about two feet square. It filled the interior of the church with smoke and caused a lot of excitement among the worshipers. I have no idea who did it. I have received no threatening letters of any kind in a long time and am at peace with the world.”

The October 15 issue of the New York Tribune reported that the Reds were rejoicing over this and other church bombings, and that the police were seeking an I.W.W. plot that “menaced many.”

There was very little actual damage and the indicent has been forgotten. But there were banner headlines, people to blame, and general excitement. Very little has changed in a hundred years.