July/August 2016 Issue

Also in this issue: Beware: The Duty to Preserve Electronic Evidence     |     Appellate Court Rules on Police Departments’ Disclosure Obligations Under the Driver’s Privacy Protection Act

Significant Home Rule Case Invalidates Milwaukee’s Residency Requirement

Julia Potter | 07.01.16

In a decision widely seen as a blow to municipal home rule authority, the Wisconsin Supreme Court (Court) struck down the City of Milwaukee’s longstanding requirement that all city employees reside within city limits. In Milwaukee Police Association v. City of Milwaukee, Appeal No. 2014AP400 (June 23, 2016), a majority of the Court clari ed the Wisconsin Constitution’s home rule amendment and held that Wis. Stat. § 66.0502 preempts a city ordinance requiring teachers, police officers, firefighters, and other public employees to be residents of the city.

Since 1938, the City of Milwaukee (City) has required its city employees to reside within city limits as a condition of employment. On June 20, 2013, as part of the 2013 State Budget Bill (Budget Bill), the legislature enacted Wis. Stat. § 66.0502, which, with some exceptions, prohibits cities, villages, towns, counties and school districts from imposing these types of residency requirements on their employees. 

On the day the Budget Bill took effect the City of Milwaukee Common Council passed a resolution directing City officials to continue to enforce the City’s residency requirement on the theory that the state law violated the City’s home rule authority. Milwaukee police and firefighters associations sued the City over the requirement, arguing that the state law trumped the City’s requirement. 

The home rule amendment to the Wisconsin Constitution provides that ​“cities and villages organized pursuant to state law may determine their local affairs and government, subject only to [the state] constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or village.” Wis. Const. art. XI, § 3(1).

The City argued that the new state law should not trump its residency requirement under the home rule amendment because it was neither of statewide concern nor uniform. It argued that residency requirements are matters of local affairs, rather than matters of statewide concern, because the requirements are necessary to protect the City’s tax base, deliver City services efficiently, and ensure that City employees are motivated and invested in the City and its future. In addition, the City argued that the state law was not uniform in its effect on all cities and villages because it would have a disproportionate impact on the City of Milwaukee. According to a report by the Legislative Fiscal Bureau, the law’s impact on Milwaukee would be dramatic — the report warned that abolishing residency requirements could result in the same type of economic decline experienced by Detroit in recent years. The City argued, and the Court of Appeals agreed, that the law was designed to target Milwaukee in particular.

A majority of the Wisconsin Supreme Court disagreed, holding that the home rule amendment did not preclude enforcing Wis. Stat. § 66.0502 against the City of Milwaukee. The Court explained that ​“a legislative enactment can trump a city charter ordinance only when the enactment either (1) addresses a matter of statewide concern, or (2) with uniformity affects every city or village.” 

Under this ​“either-or” construction, the Court did not have to decide whether residency requirements are matters of statewide concern, but instead focused on the second element of the test — uniformity. The Court held that because the law prohibiting residency requirements was written to apply to ​“any city, village, town, county, or school district” it was ​“uniform” for the purposes of the home rule amendment. The majority opinion emphasized the law’s facial uniformity as the relevant consideration, rather than the disproportionate effect it may have on any particular city. And because a state law need only be uniform or deal with a matter of statewide concern in order to trump a charter amendment, the Court’s analysis ended there. Milwaukee can no longer enforce its residency requirement in the face of a uniform state law prohibiting such requirements. 

This case has significant implications for municipalities in Wisconsin. It is the latest in a series of cases that have gradually eroded municipal home rule. In a dissent joined by Justice Shirley Abrahamson, Justice Ann Walsh Bradley observed that the majority’s decision ​“turns [the purpose of the home rule amendment] on its head” and ​“threatens to give license to the legislature to invade any city it chooses with legislation targeted at matters of purely local concern.” 

— Julia Potter