Twice in the past three years, the Wisconsin Supreme Court has rejected the city of Milwaukee’s exercise of its authority under the Wisconsin Constitution’s home rule amendment for municipalities.1 Although the court’s rulings appear to be contrary to the plain language and the purpose of the home rule amendment, the majority rejected any plain-language argument, relying on old precedent to support its interpretation.2 As such, the decisions reflect a classic conflict between the clear language of the Wisconsin Constitution and the rule of stare decisis.
The decisions also reflect the nearly century-long trend by the supreme court and the Wisconsin Legislature to restrict local control and concentrate decision-making authority at the state rather than the local-government level.3 Restrictions on local power in favor of state authority appear to be nearly all-
encompassing, unless or until the latest rulings are overturned or changed by constitutional amendment.
The Constitutional Home Rule Amendment
Article XI, section 3(1) of the Wisconsin Constitution was adopted in 1924 and reads as follows:
“Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.”
The language seems straightforward. Cities and villages “may determine their local affairs and government ….” This is a clear and direct grant of authority to municipalities from the constitution,4 although there is much to debate about what constitutes “local affairs and government.” But one thing is clear about that grant of authority: because it derives from the constitution and not from the legislature, there are boundaries to the legislature’s ability to limit that right – just as there would be with other constitutional grants of power or individual rights.
The home rule amendment is subject to limitations, including the constitution. Local legislative enactments cannot contravene other constitutional rules. The power is also subject to the legislature enacting matters “of statewide concern as with uniformity shall affect every city and village.” Again, there may be much to debate about what constitutes a “statewide concern” or how the “uniformity” clause is to be applied.
The conflict between this plain language and the old case law, discussed below, is at the heart of the differences between the majority and the concurring and dissenting justices. The underlying cause of these differences is the failure of the court to face up to the purpose of the uniformity requirement.
The uniformity requirement should be read as a necessary condition for a matter to be of statewide concern; for a legislative enactment to be of statewide concern, it must apply uniformly. If the Wisconsin Legislature allows a different rule of law to apply in the city of Jefferson and the city of Green Bay, the rule cannot be of statewide concern. That is the reason for the uniformity requirement. On the other hand, if a matter is of local concern, different rules in different cities make perfect sense.
Early Precedent Misinterpreted the Home Rule Amendment
Early supreme court cases misread the amendment, creating the precedent the court relied on in its decisions. While there are several cases,5 the most prominent one is Van Gilder v. City of Madison,6 which reviewed earlier cases. Van Gilder involved a Madison charter ordinance permitting the city to exercise its home rule powers and opt out of a portion of the police and fire commission law, Wis. Stat. section 62.13.
In finding the law a matter of statewide concern and thus beyond the reach of Madison’s powers under the home rule amendment, the court read the amendment backwards, applying the uniformity requirement for legislation on local affairs and tossing it aside as a test of what is a matter of statewide concern:
“When the legislature deals with local affairs and government of a city, if its act is not to be subordinate to a charter ordinance, the act must be one which affects with uniformity every city. … When the legislature deals with matters which are primarily of state-wide concern, it may deal with them free from any restriction contained in the home-rule amendment.”7
This is contrary to the express language of the amendment, and it is clear that the courts of the Van Gilder era could not fathom that the legislature would be stripped of its near plenary authority to legislate over municipalities. The Van Gilder court would not accept a contrary reading because it “practically destroys legislative control over municipal affairs” and “would create a state within a state, an imperium in imperio.”8
In the nearly 100 years since adoption of the home rule
amendment, the Wisconsin Supreme Court has only twice
upheld a municipality’s exercise of home rule authority.
When pressed on rehearing, the court simply reverted to its old cases that held municipalities had no inherent powers and are mere agencies of the state, unable to recognize that the purpose of the home rule amendment was to change that relationship.9 In a classic understatement, the court noted that “[i]t is true that this leaves a rather narrow field in which the home-rule amendment operates freed from legislative restriction ….”10
The court’s prediction was prescient. In the nearly 100 years since adoption of the home rule amendment, the Wisconsin Supreme Court has only twice upheld a municipality’s exercise of home rule authority.11 One case involved regulation of building heights, State ex rel. Ekern v. City of Milwaukee,12 and one involved a rent-abatement ordinance, State ex rel. Michalek v. LeGrand.13 In each case, the court sidestepped the application of the uniformity clause as described in Van Gilder.14
The justices of the Van Gilder court came from an entirely different era in the law of local governments. Municipalities were “creatures of the state” under the then accepted Dillon’s Rule,15 such that the state had to authorize each and every power granted to the municipality. The home rule amendment, along with the adoption of the general charter law for municipalities in 1921,16 was supposed to move Wisconsin to join those states where local governments had significant powers apart from legislative largesse. Such a system appeared to be foreign to the court in Van Gilder and remains so today.
The Milwaukee Cases
The supreme court’s recent decisions, Madison Teachers Inc. v. Walker (subsequently referred to as the Milwaukee pension case) and Black v. City of Milwaukee (the Milwaukee residency case),17 are significant for home rule analysis because, even though the court upheld the precedent on the home rule amendment from the Van Gilder era, a strong minority of the court asked that the interpretation be reexamined.
The Milwaukee pension case, decided in 2014, concerned several issues under 2011 Wisconsin Act 10, including the pension system for city of Milwaukee (hereinafter city or Milwaukee) workers.18 In 1947, the legislature passed a law that turned over to the city control of its public employee pension system, explicitly finding that control of the pension was a matter of the “local affairs and government” of the city.19 But 2011 Wisconsin Act 10 included a provision stripping the city of control over its public employee pensions.20 Because neither law applied with uniformity, it seemed a perfect example for exercise of the home rule powers in the “narrow field” left open by Van Gilder.
The court found otherwise. Contrary to the legislature in 1947, the court found the topic was a matter of statewide concern and thus beyond the home rule powers of Milwaukee.21 The court stated that Act 10 was concerned with matters statewide, and the legislative finding in 1947 neither bound future legislatures nor fit the changed circumstances of 2011. The court also vigorously applied the Van Gilder reading of the amendment, ruling that because Act 10 was a matter of statewide concern, the legislature could act without limitation from the home rule amendment. Two justices dissented.
More recently, in the Milwaukee residency case, the court rejected Milwaukee’s attempt to use a charter ordinance to avoid a new state law prohibiting municipalities from requiring city employees to reside in the municipality.22 Local ordinances requiring city employees to live within a city have long been upheld, although many employees opposed them. On its face, the provision in Act 10 applied statewide, but Milwaukee was the only significant city with a uniform ordinance requiring residency.
One would normally expect an analysis of whether residency is a matter of statewide concern or local affairs. But, applying its interpretation of the home rule amendment newly reinvigorated by theMilwaukee pension case, the court found it need not even determine whether the matter was of statewide or local concern. If it was local, the court easily disposed of Milwaukee’s claim:23
“The Legislature has the power to legislate on matters of local affairs when its enactment uniformly affects every city or village, notwithstanding the home rule amendment. For purposes of the home rule amendment, an enactment is uniform when it is facially uniform.”
Under this new ruling, it is unlikely that courts will first examine whether the subject matter of the state versus local conflict is one of local affairs or of statewide concern. The first inquiry, rather, is whether the state statute is uniform on its face. If it is, the state law takes precedence. The long history of trying to determine the local and state interests can be set aside: by a facially uniform statute, the legislature can overrule any purported constitutional grant of power.
In the Milwaukee pension case, three justices argued for reversing the long-standing precedent that misread the home rule amendment.24 These justices’ opinions contained ample contemporaneous evidence on the intent of the home rule amendment. The justices’ arguments did not carry the day.
The majority opinion is frustrating in that it failed to discuss the policy choices in a stare decisis versus plain meaning collision. When would it be appropriate to overrule long-standing precedent? What sort of reliance has there been on the old cases? Is there another way to view the uniformity requirement in the amendment?
These issues are not discussed. The majority did not even acknowledge any possible meaning other than has been in place since Van Gilder, essentially saying that the amendment means what the court said it meant even if the language of the amendment says otherwise. Thus, the court provided no substantive answer to the claim that the language cannot mean what the Van Gilder line said it means – only that the rule of stare decisis trumps the plain language of the constitution.25
Future of the Home Rule Amendment
The Milwaukee residency caseand the Milwaukee pension caseseverely limit municipalities’ ability to control their local affairs, contrary to the intent of the home rule amendment. As applied, the amendment cannot be used by municipalities to engage in local decision-making and act as laboratories of democracy. This is unlikely to change until the supreme court reexamines the balance of precedent versus clear language. At least a significant minority of the court now recognizes the error of the early case law.
The most significant problem with the court’s reading of the home rule amendment is that it makes the constitutional grant of power no stronger than any statutory grant of power to cities. Unlike the Ekern court’s finding of a “direct grant of legislative power to municipalities,” the court now says that the legislature can overrule the municipal exercise of constitutional home rule by a simple legislative act. As a result, the constitution is relegated to the level of a mere statute.
And the real policy choice in these cases is where the power shall lie: at the state-government level or at the local-government level. The decisions continue a long legislative and judicial tradition in Wisconsin of favoring state power over local power.26 Municipal lawyers likely will continue to apply the language of the amendment to matters they deem to be local affairs, risking the possibility that a court will overturn the local enactments but keeping alive the chance to again ask the court to revisit the rulings in the Milwaukee cases.
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What was your funniest or oddest experience in a legal context?
My most famous legal opinion as Madison City Attorney consisted of five words.
The setting was a meeting of the Common Council and a proposed ordinance to ban the operation of so-called moving billboards. These are vehicles that have a large billboard on them, and nothing else, and drive around the city. In its wisdom, the Council was considering a ban for environmental and aesthetic reasons. Our office had labored mightily to distinguish between such things as a beer truck delivering Miller products with a huge ad on its side and the moving billboards.
As the discussion neared its conclusion, an alderperson asked me, “Mr. City Attorney, would this ordinance impact the Oscar Mayer Wienermobile?” A hush fell over the Council as I perused the draft ordinance, realizing that any answer other than an unequivocal “No, the Wienermobile is safe” would doom the proposal. After reviewing the language, I opined, “You know, I don’t know.”
With no more discussion, the Council immediately defeated the proposed ordinance by a voice vote.
Michael P. May, City Attorney's Office, Madison.
1 The home rule amendment is found in article XI, section 3(1) of the Wisconsin Constitution. The cases are Black v. City of Milwaukee, 2016 WI 47, 369 Wis. 2d 272, 882 N.W. 2d 333 (petition for cert. filed, No. 16-376, Sept. 21, 2016) (Milwaukee residency case), and Madison Teachers Inc. v. Walker, 2014 WI 99, 358 Wis. 1, 851 N.W. 2d 337 (Milwaukee pension case). The latter suit was brought by the Madison Metropolitan School District’s teachers’ union and by Public Employees Local 61, a labor organization representing approximately 300 city of Milwaukee employees.
2 SeeBlack, 2016 WI 47, ¶¶ 26-27, 369 Wis. 2d 272.
3 See, e.g., Memorandum from Bob Lang, Director of the Legislative Fiscal Bureau, to Rep. Katrina Shankland (May 16, 2016).
The memorandum identifies 128 instances of the Wisconsin Legislature restricting or preempting local powers, or imposing unfunded mandates on local government, since 2011.
4 State ex rel. Ekern v. City of Milwaukee, 190 Wis. 633, 637, 209 N.W. 860 (1926): “First, it makes a direct grant of legislative power to municipalities, so that such powers are now held by express grant in and by the constitution….”
5 State ex rel. Harbach v. City of Milwaukee, 189 Wis. 84, 206 N.W. 210 (1925); State ex rel. Sleeman v. Baxter, 195 Wis. 437, 219 N.W. 858 (1928).
6 222 Wis. 58, 267 N.W. 25 (1936).
7 Id. at 84.
8 Id. at 71, 81.
9 Id. at 85, 88.
10 Id. at 81.
11 The method by which cities exercise the home rule power is by adoption of a charter ordinance pursuant to the procedure set forth in Wis. Stat. section 66.0101.
12 190 Wis. 633, 209 N.W. 860 (1926).
13 77 Wis. 2d 520, 235 N.W. 2d 505 (1977).
14 Lawyers must distinguish between the constitutional home rule powers discussed in this article and the unfortunately named “statutory home rule” powers in Wis. Stat. section 62.11(5). These changes to municipal authority were adopted around the same time in the 1920s, along with the General Charter Law (Wis. Stat. ch. 62), all of which ended the practice of the legislature having to adopt individual charters for each city and village in the state. See Thomas P. Solheim, Conflicts Between State Statute and Local Ordinances in Wisconsin, 1975 Wis. L. Rev. 840; Kerry A. Burchill, Madison’s Minimum-Wage Ordinance, Section 104.001, and the Future of Home Rule in Wisconsin, 2007 Wis. L. Rev. 151.
15 2 McQuillin Mun. Corp. § 4.11 (3d ed.).
16 See 1921 Wis. Laws C. 242.
17 Madison Teachers Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1 (Milwaukee pension case), and Black v. City of Milwaukee, 2016 WI 47, 369 Wis. 2d 272 (Milwaukee residency case).
18 People are more aware of the Milwaukee pension case than of the Milwaukee residency casebecause the former case settled the dispute over the rights of public employee unions that were changed by 2011 Wisconsin Act 10. That the law changed the Milwaukee pension system and affected local government authority is almost forgotten.
19 Madison Teachers Inc., 2014 WI 99, ¶¶ 124-129, 358 Wis. 2d 1; Wis. Laws of 1947, c. 441.
20 Wis. Stat. section 62.623.
21 Madison Teachers Inc., 2014 WI 99, ¶¶ 118-129, 358 Wis. 2d 1.
22 Wis. Stat. section 66.0502
23 Black, 2016 WI 47, ¶ 7, 369 Wis. 2d 272.
24 Id. ¶¶ 52-127 (R. Bradley, J., concurring; Abrahamson, J., & A.W. Bradley, J., dissenting).
25 Id. ¶ 37. Compare the analysis by Justice Rebecca Bradley, concurring in the judgment, at paragraphs 52-66.
26 This trend is bipartisan. A trend cannot continue for nearly a century without the acquiescence of persons of varied political persuasions.