Black v. City of Milwaukee
| Decision Date | 21 July 2015 |
| Docket Number | No. 2014AP400.,2014AP400. |
| Citation | 364 Wis.2d 626,869 N.W.2d 522 |
| Parties | James A. BLACK, Glen J. Podlesnik and Steven J. Van Erden, Plaintiffs–Respondents, Milwaukee Professional Fire Fighters Association Local 215, Intervenor–Plaintiff–Respondent, Milwaukee Police Association and Michael V. Crivello, Plaintiffs–Respondents–Cross–Appellants, v. CITY OF MILWAUKEE, Defendant–Appellant–Cross–Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Grant F. Langley, City Attorney, and Miriam R. Horwitz, Deputy City Attorney.
On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the brief of Jonathan Cermele of Cermele & Matthews, S.C., of Milwaukee.
On behalf of the intervenor-plaintiff-respondent, the cause was submitted on the brief of John F. Fuchs and Rebecca D. Boyle of Fuchs & Boyle, S.C., of Milwaukee.
An amicus curiae brief was filed on behalf of the League of Wisconsin Municipalities by Claire Silverman of Madison.
Before CURLEY, P.J., KESSLER and BRENNAN, JJ.
¶ 1 Wisconsin's “home rule” amendment, Wis. Const. art. XI, § 3 (1), provides, as relevant here, that “[c]ities 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.” This means, broadly speaking, that where a city has created law under its “home rule” authority, any state law in conflict must yield to the local law unless it involves a matter of “statewide concern” and affects every city or village with uniformity.
¶ 2 In this case, we are asked to determine which of two competing pieces of legislation—one created by the state legislature, and one created by the City of Milwaukee under “home rule” authority—has the force of law. The City of Milwaukee ordinance at issue, Ordinance 5–02, requires all city employees to live in the City of Milwaukee. The state statute at issue, Wis. Stat. § 66.0502 (2013–14),1 abolishes local residency requirements. Following cross motions for summary judgment, the trial court declared that § 66.0502 involves a matter of statewide concern, affects all local governmental units uniformly, and consequently, pursuant to the home rule amendment, trumps the Milwaukee ordinance. The trial court also determined that § 66.0502 creates a constitutional liberty interest, but that the City did not violate that interest after the Common Council effected a short-lived resolution directing City officials to enforce the local residency ordinance instead of the state law. On appeal, the City appeals the declaration that § 66.0502 involves a matter of statewide concern, affects all local governmental units uniformly, and trumps the Milwaukee ordinance. The City also appeals the declaration that § 66.0502 creates a constitutional liberty interest. The Milwaukee Police Association and Michael Crivello2 appeal the declaration that the City did not violate their liberty interest.
¶ 3 We reverse the trial court on its first two declarations and conclude that: (1) because Wis. Stat. § 66.0502 does not involve a matter of statewide concern and does not affect all local governmental units uniformly, it does not trump the Milwaukee ordinance; and (2) § 66.0502 does not create a protectable liberty interest. Consequently, the City of Milwaukee may continue to enforce City Ordinance 5–02, which remains good law. We also affirm the trial court's decision that the City did not violate any of the constitutional rights of the members of the Police Association.
¶ 4 In June 2013, Wis. Stat. § 66.0502, “Employee Residency Requirements Prohibited,” was signed into law. See 2013 Wis. Act 20, § 1270. Section 66.0502 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 a local governmental unit. The statute provides:
¶ 5 While the new law states that “residency requirements are a matter of statewide concern,” see Wis. Stat. § 66.0502(1), the facts in the record before us primarily concern the law's impact on the city of Milwaukee—which, for over seventy-five years, has required its employees to reside within the city. Our primary source in understanding the impact of abolishing local residency requirements is Paper # 554 of the Legislative Fiscal Bureau,3 prepared on May 9, 2013, over a month before § 66.0502 was passed, titled, “Local Government Employee Residency Requirements.” The Legislative Fiscal Bureau paper begins by discussing the applicability of residency requirements across the state generally, citing a study indicating that while 114 municipalities and about thirty counties restrict where their employees may reside in some fashion, only thirteen municipalities and three counties require all of their employees to live within the municipal limits. As we will soon see, however, the Legislative Fiscal Bureau paper otherwise focuses almost wholly on the impact abolishing local residency requirements would have on the City of Milwaukee.
¶ 6 The first portion of the Legislative Fiscal Bureau paper's analysis, “Impact on Local Economy and Budgets, ” pertains solely to the impact abolishing residency requirements would have on Milwaukee. This part of the report states that “[f]or Milwaukee ... it is believed by some that doing away with the [residency] requirement would impact the city's employment levels and lead to an exodus from the city, causing downward pressure on the home values in that city's neighborhoods.” Specifically, the report notes that the city “employs nearly 7,200 individuals,” several city neighborhoods “contain heavy concentrations of city and school district employees,” and that these employees not only have higher salary levels than the city average, but also “these higher salary levels carry through to the value of homes owned by their employees, which ... are 20% higher than the average home value in the City.” The analysis further explains that if large numbers of city employees leave Milwaukee, “the levels of employment, incomes, and home values in certain neighborhoods of the City could be negatively impacted.”
¶ 7 Significantly, the “Impact on Local Economy and Budgets ” portion of the Legislative Fiscal Bureau paper's analysis warns that abolishing residency requirements could result in Milwaukee's suffering the same economic decline recently experienced by the city of Detroit. It states that while “the actual level of out-migration of public employees from the City of Milwaukee can only be speculated on at this point,” other Midwestern cities—including Detroit and Minneapolis—saw significant shifts in population following the lifting of residency requirements. In Detroit, fifty-three percent of the police force moved outside the city, contributing to Detroit's well-known population decline—one in which the population of Detroit once comprised “nearly two-thirds of its metropolitan area's population, but now makes up less than one-fourth.” Even in Minneapolis, which is smaller and does not have the same industrial background as Detroit and Milwaukee—the percentage of city employees residing in the city declined from “nearly 70% when the requirement was in place to only 30% now.” The report surmised that Milwaukee could face the same fate as these cities, despite arguments to the contrary:
Employee groups and opponents of residency requirements tend to downplay the timing of how quickly, and degree to which, public employees would leave the City of Milwaukee if residency requirements are removed. They note that the employees would have to sell their homes before leaving, which could take some time.... However, given that public employees, their unions, and associations want relief from the residency requirements in Milwaukee, it would seem somewhat evident that providing that relief could lead to some number of those public employees migrating out of the City.
¶ 8 The subsequent portions of the Legislative Fiscal Bureau paper's analysis are much like the “Impact on Local Economy and Budgets ” section; the focus is almost singularly devoted to discussing the effect...
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