June 23, 2016 – Employees who work for the City of Milwaukee, including law enforcement and Milwaukee public school teachers, can now live outside the city limits without fear of being fired, under a recent ruling from the Wisconsin Supreme Court.
The police and firefighter unions sued Milwaukee over an ordinance that requires city employees to reside within the city’s borders as a condition of employment. The city enforced the ordinance despite a 2013 state law banning residency requirements.
The city argued that the residency requirement helps it maintain a strong tax base with employees who are invested in the community, and the residency requirement ensures that resident police officers and firefighters will respond quickly to emergencies.
The city also argued that its “home rule” authority, under the Wisconsin Constitution, allowed it to maintain a residency requirement as a matter of local concern.
But the police and fire unions argued that the legislature banned residency requirements statewide, under Wis. Stat. section 66.0502, and the state constitution’s home rule amendment does not trump state law because residency requirements are matters of statewide concern applied uniformly to all cities in Wisconsin.
An appeals court upheld Milwaukee’s residency ordinance, which has stood for more than 75 years, concluding that city residency requirements are not matters of statewide concern regardless of whether the state legislature has declared that they are.
The three-judge appeals court panel had noted legislative fiscal papers that indicated “the goal of Wis. Stat. § 66.0502 was to target the City of Milwaukee.”
But in Milwaukee Police Association v. City of Milwaukee, 2016 WI 47 (June 23, 2016), a supreme court majority (5-2) ruled that the statewide ban on city residency requirements trumps Milwaukee’s ordinance, rejecting the city’s home rule argument.
“For purposes of the home rule amendment, an enactment is uniform when it is facially uniform,” wrote Justice Michael Gableman. “Wisconsin Stat. § 66.0502 is facially uniform because it applies to ‘any city, village, town, county, or school district.’”
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, dissented on this point. They argued that the home rule amendment’s purpose it to grant local communities greater autonomy over local affairs, such as local residency.
“Instead of freeing municipalities from interference by the legislature when dealing with local affairs, the majority limits the power and restrains the ability of municipalities to self-govern,” Justice A.W. Bradley wrote.
On a second issue, the court was unanimous in concluding that the Milwaukee Police Association was not entitled to damages under 42 U.S.C. section 1983.
“[T]he Police Association has not shown a deprivation of rights, privileges, or immunities protected by the Constitution or the laws of the United States,” Justice Gableman wrote.
Home Rule and Residency Requirement
The city argued that legislative enactments cannot trump the home rule authority unless the legislation both addresses a matter of statewide concern and uniformly affects every city or village. But a four-justice majority said that interpretation is incorrect.
That is, legislation can trump home rule authority if it addresses a matter of statewide concern or uniformly affects every city or village. The court assumed, without deciding, that employee residency requirements are not matters of statewide concern.
But it ruled that section 66.0502 trumps Milwaukee’s residency ordinance because the law “uniformly affects every city or village.”
“Wis. Stat. § 66.0502 uniformly bans residency requirements, and in so doing, it satisfies the home rule amendment’s uniformity requirement,” Gableman wrote.
The majority noted that 13 municipalities, including Milwaukee, had a residency requirement that required employees to live within the municipality before the Wisconsin Legislature banned residency requirements statewide in 2013.
The union argued that it was entitled to damages under 42 U.S.C. section 1983, which allows parties to obtain damages for a deprivation of constitutional rights, because the city continued to enforce the residency requirement despite a competing state law.
That is, employees argued that the city violated their substantive due process rights with actions that shocked the conscience and interfered with their liberty interests.
“[W]e are not willing to conclude that a genuine legal dispute over the priority of two competing laws … rises to the level of conscience-shocking behavior,” Justice Gableman wrote for the court.
The court also ruled that the unions did not assert a fundamental right or liberty interest that is “deeply rooted in this Nation’s history and tradition,” which was required.
Dissents and Concurrences
Justice Rebecca Bradley wrote a concurring opinion. She did not agree with the majority’s opinion that home rule authority can be superseded if a legislative enactment is either a matter of statewide concern or is uniformly applied.
R. Bradley said legislative enactments can only trump the home rule authority if the legislation is both a matter of statewide concern and is uniformly applied.
But the legislature’s ban on local residency requirements is both a matter of statewide concern and uniformly applied to all cities, R. Bradley concluded.
Justice A.W. Bradley, joined by Justice Abrahamson, would have affirmed the appeals court, concluding the residency requirement is protected by home rule authority and the legislative history showed the legislation targeted the City of Milwaukee.
“[I]n reaching its conclusion that Wis. Stat. 66.0502 precludes the city of Milwaukee from enforcing its residency requirement, the majority restricts the constitutional mandate and instead grants expansive power to the legislature to govern matters that relate exclusively to the local affairs of Wisconsin’s cities and villages,” A.W. Bradley wrote.