Black v. City of Milwaukee
869 N.W.2d 522
Wis. Ct. App.2015Background
- In 2013 the Wisconsin Legislature enacted Wis. Stat. § 66.0502, broadly prohibiting local employee residency requirements except limited 15-mile rules for police, fire, and emergency personnel. The statute declared residency requirements a "matter of statewide concern."
- The City of Milwaukee has had a constitutional home-rule‑based ordinance (Ordinance 5-02) requiring all city employees to live within city limits for over 75 years.
- The Milwaukee Common Council adopted a resolution directing continued enforcement of the city ordinance after § 66.0502 was enacted.
- Milwaukee Police Association (and an individual officer) sued, seeking a declaration that the city ordinance was unenforceable to the extent it conflicted with § 66.0502 and asserting § 1983 liberty‑interest claims. The trial court held the statute was a matter of statewide concern, applied uniformly, trumped the ordinance, and created a liberty interest, but found no deprivation.
- The court of appeals reversed in part: it held § 66.0502 is not a matter of statewide concern, does not uniformly affect every city or village, does not trump Milwaukee’s home‑rule ordinance, and does not create a protectable liberty interest; it affirmed that no constitutional deprivation was shown.
Issues
| Issue | Police Association's Argument | City of Milwaukee's Argument | Held |
|---|---|---|---|
| Whether § 66.0502 concerns a matter of statewide concern under the home‑rule amendment | Legislature declared it statewide; public‑policy and employment regulation (public safety/welfare) justify statewide concern | Matter is local: impacts municipal tax base, emergency response, and local governance; principally targets Milwaukee | § 66.0502 is not a matter of statewide concern; local concerns predominate |
| Whether § 66.0502 "affects every city or every village" with uniformity | The statute "applies" to all local governmental units so it is uniform | Although facially applicable, the statute will disproportionately and principally affect Milwaukee; not uniform in effect | § 66.0502 does not uniformly affect every city or village; fails uniformity requirement |
| Whether § 66.0502 supersedes Milwaukee Ordinance 5‑02 (home‑rule conflict) | State law prevails if it is statewide and uniform; therefore § 66.0502 trumps local ordinance | Because § 66.0502 is neither statewide nor uniform, it cannot override Milwaukee’s constitutionally conferred home‑rule ordinance | § 66.0502 does not trump Milwaukee Ordinance 5‑02; the city ordinance remains valid for Milwaukee |
| Whether § 66.0502 creates a constitutionally protected liberty interest for public employees and whether municipal enforcement violated that interest | The statute creates an enforceable liberty interest in freedom from residency requirements; enforcement of the city ordinance violated that interest | Residency requirements are constitutionally permissible and not "unfairly restrictive"; statute does not create a protected liberty interest | § 66.0502 does not create a protectable liberty interest; no § 1983 liberty‑interest violation found |
Key Cases Cited
- State ex rel. Ekern v. City of Milwaukee, 190 Wis. 633 (1926) (describing home‑rule amendment’s grant and limits)
- Van Gilder v. City of Madison, 222 Wis. 58 (1936) (articulating uniformity and subordinate state legislation principles)
- Madison Teachers, Inc. v. Walker, 358 Wis. 2d 1 (2014) (two‑step test: statewide concern then uniformity under art. XI, § 3)
- State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520 (1977) (court determines statewide vs. local concern on case‑by‑case basis)
- State v. Kalal, 271 Wis. 2d 633 (2004) (statutory interpretation principles cited)
- McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645 (1976) (upholding municipal residency requirements as rationally related to governmental purposes)