Appeals Court Rules Milwaukee Residency Requirement Trumps State Law
In Milwaukee Police Association v. City of Milwaukee, No. 2014AP400 (Wis. Ct. App. July 21, 2015) (publication recommended), the Wisconsin Court of Appeals held that Wis. Stat. §66.0502, which essentially prohibits residency requirements in local governments, does not trump the City of Milwaukee’s Ordinance requiring its employees to reside within the City.
Section66.0502, signed into law in June 2013, prohibits local governments from enacting and enforcing residency requirements of any kind, except for those that require police officers, firefighters, or other emergency personnel to reside within fifteen miles of the local government. For over seventy-five years, the City of Milwaukee has required its employees to reside within the City under Milwaukee Ordinance § 5-02. A Legislative Fiscal Bureau Paper, prepared over a month before §66.0502 was passed, focused almost entirely on the impact abolishing local residency requirements would have on the City. Significantly, a portion of the paper warns that abolishing residency requirements could result in Milwaukee suffering the same economic decline recently experienced by Detroit.
Shortly after § 66.0502 was signed into law, the City of Milwaukee Common Council adopted a resolution concluding that the new statute violated Article XI, Section 3, Subsection (1) of the Wisconsin Constitution, which allows cities and villages to “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 village.” The City’s resolution further directed all City officials to continue enforcing its local residency rule.
The Police Association filed suit, seeking a judgment declaring that the City’s residency ordinance and resolution were unenforceable to the extent they conflicted with § 66.0502. The Police Association also sought judgment and damages under 42 U.S.C. § 1983, alleging that the City’s continuing enforcement of its residency ordinance constituted a deprivation of liberty interests. The trial court issued an order declaring the City Ordinance and Common Council Resolution void and unenforceable to the extent they violate the terms of § 66.0502. The trial court further found that § 66.0502 creates a protectable liberty interest, but that there was no evidence of actionable deprivation.
District I of the Wisconsin Court of Appeals reversed in part and affirmed in part. The Court initially noted that the City derived authority for its residency ordinance from constitutional “home rule” power. State law must yield to local laws enacted under the constitutional home rule power unless the state law involves matters of statewide concern and affects every city or village with uniformity.
First, the Court concluded that §66.0502 does not involve a matter of statewide concern. The Police Association failed to support its primary argument – that the statute involves a matter of statewide concern because the legislature said so. In rejecting this argument, the Court stated, “[w]hile we generally give the legislature’s determinations great weight… such pronouncements are not controlling, and it is the judiciary that has been charged with the ultimate determination of what is a matter of statewide concern. The Court went on to agree with the City that §66.0502 concerns a local matter because overturning the City’s residency requirement directly affects the City’s economy and tax base, interferes with the ability of the City to promptly respond to emergencies, and affects the City’s strong interest in having employees who are genuinely invested in the City’s welfare and progress. The Court finally concluded that §66.0502 does not create a protectable liberty interest because the Court failed to see how residency requirements are “unfairly restrictive.”
Next, the Court concluded that §66.0502 does not uniformly affect every city or village. The Police Association argued that §66.0502 is uniform because it “applies” to all local government bodies in the state. The Court disagreed and found that while the statute does not overtly single out any particular municipality, only one city, Milwaukee, will be “deeply and broadly affected.” As a result, the Court concluded that §66.0502 does not apply to Milwaukee’s residency requirement.
Although this case is a win for municipal home rule, it is almost certain to be the subject of a petition for review to the Wisconsin Supreme Court. A broad or narrow decision by the Supreme Court could have lasting effects on the, often essential, home rule powers of Wisconsin municipalities.
