James A. BLACK, Glen J. Podlesnik and Steven J. Van Erden, Plaintiffs-Respondents-Petitioners, MILWAUKEE PROFESSIONAL FIRE FIGHTERS ASSOCIATION LOCAL 215, Intervenor-Plaintiff-Respondent-Petitioner, MILWAUKEE POLICE ASSOCIATION and Michael V. Crivello, Plaintiffs-Respondents-Cross-Appellants-Petitioners, v. CITY OF MILWAUKEE, Defendant-Appellant-Cross-Respondent.
No. 2014AP400
Supreme Court
June 23, 2016
Oral argument February 24, 2016.
2016 WI 47 | 882 N.W.2d 333
For the defendant-appellant-cross-respondent, there was a brief by Grant F. Langley, Milwaukee City Attorney and Miriam R. Horwitz, Milwaukee Deputy City Attorney, and oral argument by Miriam R. Horwitz.
There was an amicus curiae brief by Richard M. Esenberg, Thomas C. Kamenick, Kenneth Chesebro, Cambridge, MA (pro hac vice), and Wisconsin Institute for Law & Liberty, Milwaukee.
There was an amicus curiae brief by Claire Silverman and League of Wisconsin Municipalities.
¶ 1. MICHAEL J. GABLEMAN, J. This is a review of a published decision of the court of appeals, which affirmed in part and reversed in part the Milwaukee County Circuit Court‘s1 grant of summary judgment in favor of the Milwaukee Police Association (“Police Association“) and the Milwaukee Professional Fire Fighters Association Local 215 (“Fire Fighters Association“). Black v. City of Milwaukee, 2015 WI App 60, 364 Wis. 2d 626, 869 N.W.2d 522.
¶ 2. This case requires us to interpret and apply
may, under its home rule authority, create a law that deals with its local affairs, but the Legislature has the power to statutorily override the city‘s or village‘s law if the state statute touches upon a matter of statewide concern or if the state statute uniformly affects every city or village. See Madison Teachers, 358 Wis. 2d 1, ¶ 101.
¶ 3. In the present case, we interpret and apply the home rule amendment to determine whether a section in the City of Milwaukee‘s (“the City” or “Milwaukee“) charter can trump a statute enacted by the Legislature. Since 1938, Milwaukee has required its city employees to comply with a residency requirement or face termination of their employment. Its residency requirement is set forth in section 5-02 of the City‘s charter. Put simply, it requires city employees to reside within city limits. In 2013, the Legislature enacted
¶ 4. The City claims that it can continue to enforce its residency requirement pursuant to its home rule authority under
¶ 5. In contrast, the Police Association claims that the City can no longer enforce its residency requirement because
¶ 6. This case presents two issues for our review. The first is whether
¶ 7. As to the first issue, we hold that
¶ 8. As to the second issue, we hold that the Police Association is not entitled to relief or damages under
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶ 9. For many years, Milwaukee7 has required its city employees to reside within city limits as a condition of employment. Moreover, it has mandated
1. RESIDENCY REQUIRED. All employe[e]s of the city of Milwaukee are required to establish and maintain their actual bona fide residence within the boundaries of the city. Any employe[e] who does not reside within the city shall be ineligible for employment by the city and his employment shall be terminated in a manner hereinafter set forth.
¶ 10. On June 20, 2013, the Legislature enacted 2013 Wisconsin Act 20 (“Act 20“).8 Section 1270 of Act 20 created
(1) The legislature finds that public employee residency requirements are a matter of statewide concern.
(2) In this section, “local governmental unit” means any city, village, town, county, or school district.
(3)(a) Except as provided in sub. (4), no local governmental unit may require, as a condition of employment, that any employee or prospective employee reside within any jurisdictional unit.
(b) If a local governmental unit has a residency requirement in effect on July 2, 2013, the residency requirement does not apply and may not be enforced.9
This resolution directs all City officials to continue enforcement of s. 5-02 of the Milwaukee City Charter relating to residency of City employees. The Common Council finds that legislative action, and specifically the enactment of 2013 Wisconsin Act 20, s. 1270, violates the City‘s constitutional home rule authority under Article XI, Section 3(1), of the Wisconsin State Constitution. Section 1270 purports to prohibit most municipal laws requiring employee residency including provisions of the Milwaukee City Charter.
The Common Council further finds that acquiescence to this unconstitutional exercise of state authority would significantly harm the interests of the City and its residents.
(4)(a) This statute does not affect any statute that requires residency within the jurisdictional limits of any local governmental unit or any provision of state or local law that requires residency in this state.
(b) Subject to par. (c), a local governmental unit may impose a residency requirement on law enforcement, fire, or emergency personnel that requires such personnel to reside within 15 miles of the jurisdictional boundaries of the local governmental unit.
(c) If the local governmental unit is a county, the county may impose a residency requirement on law enforcement, fire, or emergency personnel that requires such personnel to reside within 15 miles of the jurisdictional boundaries of the city, village, or town to which the personnel are assigned.
(d) A residency requirement imposed by a local governmental unit under par. (b) or (c) does not apply to any volunteer law enforcement, fire, or emergency personnel who are employees of a local governmental unit.
[] The issue of local residency is not a matter of state-wide concern but is instead clearly a matter of “local affairs and government” to be determined by local governments that are directly accountable to local voters; and
[] In 1938, as an exercise of its Constitutional Home Rule authority, the City of Milwaukee enacted a charter ordinance, now City Charter s. 5-02, requiring that all employees reside within the boundaries of the City....
Furthermore, the resolution listed justifications for the Common Council‘s decision to pass the resolution, such as (1) “the need to ensure that sufficient staff are able to respond in a timely manner to” emergencies; (2) the need to “minimize[] the City‘s response time;” (3) the need for city employees to “contribut[e] to the City‘s economy; (4) and the desire for city employees to have “better knowledge of neighborhoods and enhanced relationships with residents.”
¶ 12. The City‘s Mayor signed the resolution on the same day the Common Council passed it. In addition, the Mayor publicly announced that the City would terminate the employment of any employee found to be in violation of its residency requirement.
¶ 13. On July 10, 2013, the Police Association10 filed suit against the City in Milwaukee County Circuit Court. The Police Association sought a declaratory
¶ 14. Some time later, the Fire Fighters Association intervened in the action. It sought an “adjudication of the constitutionality and enforceability of § 66.0502 of Wisconsin Statutes,” and “a permanent injunction enjoining the City of Milwaukee from enforcing any ordinances, resolutions, policies, orders, or directives in any form, in contravention of the rights of the members of Local 215 under § 66.0502 of the Wisconsin Statutes.”13 All parties moved for summary judgment.
This Court finds that
Wis. Stat. § 66.0502 deals with a matter primarily of statewide concern and applies uniformly to all local government units in this state. The enactment ofWis. Stat. § 66.0502 withdrew from local governments the power to regulate the matter of residency requirements for municipal employees, and thereby removed the issue of residency from the scope of home rule authority underart. XI, sec. 3(1), Wis. Const. Consequently, the home rule amendment does not authorize the City to continue regulating residency requirements by enforcing an ordinance which is directly contrary to the legislative mandates ofWis. Stat. § 66.0502 . The City‘s residency ordinance and related [resolution] are unenforceable to the extent that they fail to comply with the legislative mandates ofWis. Stat. § 66.0502 .
Regarding the Police Association‘s section 1983 claim for damages, the circuit court concluded that ”
¶ 16. The City appealed, and the Police Association14 cross-appealed. The court of appeals affirmed in part and reversed in part the circuit court‘s grant of
¶ 17. In reaching its conclusion on the home rule amendment, the court of appeals expressed deep concern over the disproportionate “impact” it believed
¶ 18. Further, the court of appeals feared that Milwaukee might become the next Detroit: “Significantly, ... 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
¶ 19. The Police Association petitioned this court for review. We granted the petition on November 4, 2015.
II. STANDARD OF REVIEW
¶ 20. This case comes before the court as an action for declaratory judgment and on cross-motions for summary judgment. “When a circuit court‘s ruling on motions for declaratory judgment depends on a question of law, we review the ruling de novo.” Gister v. Am. Family Mut. Ins. Co., 2012 WI 86, ¶ 8, 342 Wis. 2d 496, 818 N.W.2d 880. “We review the partial grant of summary judgment independently, applying the same methodology as the circuit court.” In re Brianca M.W., 2007 WI 30, ¶ 8, 299 Wis. 2d 637, 728 N.W.2d 652. “Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.
III. DISCUSSION
¶ 22. We first discuss whether
A. WHETHER WIS. STAT. § 66.0502 PRECLUDES THE CITY FROM ENFORCING ITS RESIDENCY REQUIREMENT
¶ 23. “The legislative power in this state is lodged in the legislature. When it exerts that power, it exerts it on behalf of and in the name of the people of the State of Wisconsin.” Van Gilder v. City of Madison, 222 Wis. 58, 67, 267 N.W. 25 (1936). Conversely, “cities are creatures of the state legislature [that] have no inherent right of self-government beyond the powers expressly granted to them.” Madison Teachers, 358 Wis. 2d 1, ¶ 89 (citing Van Gilder, 222 Wis. at 72-73 (citing City of Trenton v. New Jersey, 262 U.S. 182, 187
¶ 24. Adopted in 1924, the “recognized purpose” of the home rule amendment “was to confer upon cities and villages a measure of self-government not theretofore possessed.” State ex rel. v. Baxter, 195 Wis. 437, 445, 219 N.W. 858 (1928) (”Baxter“). Correspondingly, the home rule amendment permits “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 every village.”15
¶ 25. Two years ago, we clarified the relevant analytical framework for the home rule amendment:
[O]ur home rule case law instructs us that, when reviewing a legislative enactment under the home rule
amendment, we apply a two-step analysis. First, as a threshold matter, the court determines whether the statute concerns a matter of primarily statewide or primarily local concern. If the statute concerns a matter of primarily statewide interest, the home rule amendment is not implicated and our analysis ends. If, however, the statute concerns a matter of primarily local affairs, the reviewing court then examines whether the statute satisfies the uniformity requirement. If the statute does not, it violates the home rule amendment.
Madison Teachers, 358 Wis. 2d 1, ¶ 101.
¶ 26. The City takes issue with our recent interpretation of the home rule amendment. It believes that pursuant to the home rule amendment, a legislative enactment can trump a city charter ordinance only when the enactment both (1) addresses a matter of statewide concern, and (2) with uniformity affects every city or village. In contrast, we have held that a legislative enactment can trump a city charter ordinance either (1) when the enactment addresses a matter of statewide concern, or (2) when the enactment with uniformity affects every city or village. See id., ¶ 99.
¶ 27. We reached our determination after analyzing and applying firmly-rooted and long-established Wisconsin Supreme Court precedent. See id., ¶ 105 (highlighting “this court‘s long-held rule that when a charter ordinance of a home rule city concerns a matter of local affairs, conflicting legislation must be uniformly applied statewide to satisfy the home rule amendment“); id., ¶ 109 n.32 (surveying the “ample scholarship on the topic of state constitutional home rule,” and concluding that it aligned with this court‘s interpretation of the home rule amendment); State ex rel. Harbach v. City of Milwaukee, 189 Wis. 84, 86, 206 N.W.2d 210 (1925)16 (”Harbach“) (“It is obvious that the limitation placed upon the power of the legislature with reference to laws which ‘shall with uniformity affect every city or every village’ is confined to the ‘local affairs and government’ of cities and villages. With reference to all subjects that do not constitute ‘local affairs,’ or relate to the government of cities and villages, the legislature has the same power of classification that it had before the adoption of the home-rule amendment.” (emphasis added)); Baxter, 195 Wis. at 44917 (“The power of the legislature to legislate in the future as it has in the past has not been limited. But where the legislation of a city enacted within the scope of its home-rule powers comes in conflict with state legislation, the legislation of the city prevails over the state legislation, unless the state legislation
The dissent purports to reach its conclusion by reading the text of the amendment to “mean what it says.” See dissent, ¶ 120. Its “textual” analysis consists of a regurgitation of the home rule amendment, followed by a conclusory statement that the text of the amendment requires both a statewide concern and uniformity. Dissent, ¶¶ 120-21. Nowhere does the dissent attempt to engage in a true analysis of the text by pulling apart, explaining, and defining the phrases and terms used in the home rule amendment.
The bulk of the concurrence‘s analysis rests on an amicus brief from the Baxter case and some newspaper clippings. According to the concurrence, the amicus brief, written by the drafter of the home rule amendment, confirms that a legislative enactment must both involve a matter of statewide concern and with uniformity affect every city or every village. Concurrence, ¶ 62; but see State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 52, 271 Wis. 2d 633, 681 N.W.2d 110 (“Ours is a government of laws not men, and it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. It is the law that governs, not the intent of the lawgiver . . . Men may intend what they will; but it is only the laws that they enact which bind us.” (internal quotation marks omitted) (citing Antonin Scalia, A Matter of Interpretation, at 17 (Princeton University Press, 1997))).
What the concurrence fails to note is that numerous amicus briefs in addition to the one cited by the concurrence were filed in Baxter and other home rule amendment cases. These briefs raised varying interpretations of the home rule amendment. See Harbach, 189 Wis. 84, Walter H. Bender on behalf of the Board of Trustees of Milwaukee Public School Teachers Annuity and Retirement Fund as Amicus Curiae, at 17-18 (1925) (noting that the phrase “subject to such enactments of the legislature of statewide concern as shall with uniformity affect every city or every village,” “limit[s] the
Since 1925, many Justices have been called upon to interpret the home rule amendment. These Justices had ample briefing, with numerous parties presenting varying interpretations of the home rule amendment. See, e.g., Baxter, 195 Wis. at 443-44 (“[W]e invited briefs amicus curiae [to address questions related to the home rule amendment.] The response to this invitation was most gratifying. We have been favored with excellent briefs on the part of able counsel, and we have been greatly assisted thereby in arriving definitely and clearly at the conclusions hereinafter announced.“). The very first court to interpret the amendment unanimously declared that our reading of the home rule amendment was “obvious.” Harbach, 189 Wis. at 86. Additionally, subsequent courts interpreting the home rule amendment have found our reading “definite[] and clear[].” Baxter, 195 Wis. at 443-44.
¶ 28. We have long recognized “that the terms ‘local affairs’ and ‘statewide concern’ in the home rule amendment are problematically vague.” Id., ¶ 113 (citing Van Gilder, 222 Wis. at 73). “Further, the terms ‘local affairs’ and ‘statewide concern’ carry the risk of oversimplifying reality [because] the ‘functions of state and local governments necessarily overlap,’ and moreover, the nature of government functions can change over time.” Id. (citation omitted) (citing Van Gilder, 222 Wis. at 64). As a result, “home rule challenges are, by necessity, fact-specific inquiries, and determinations are made on an ad hoc basis.” Id.
¶ 29. As part of our statewide or local concern analysis, “we have outlined three areas of legislative enactment: those that are (1) exclusively a statewide concern; (2) exclusively a local concern; or (3) a ‘mixed bag.‘” Id., ¶ 96; see also Michalek, 77 Wis. 2d at 526-28. If a legislative enactment concerns a policy matter that is exclusively of statewide concern, then the home rule amendment grants no city or village the authority to regulate the matter. Madison Teachers, 358 Wis. 2d 1, ¶ 97; see also Van Gilder, 222 Wis. at 84 (“When the legislature deals with matters which are primarily matters of state-wide concern, it may deal with them free from any restriction contained in the In short, the dissent and the concurrence may present one way to interpret the home rule amendment. But their interpretation has been outright rejected by informed Wisconsin Supreme Court Justices since 1925.
¶ 30. Here, the Legislature specially included a public policy statement in
¶ 31. In this case, we are being asked to weigh a statewide policy-based concern against a local economic interest. On the one hand, the Legislature, through its enactment of
¶ 32. Given the competing interests outlined above, we conclude that
2. Whether Wis. Stat. § 66.0502 With Uniformity Affects Every City Or Village
¶ 33. We are instructed by our determination in Madison Teachers that if the statute concerns a matter of primarily local affairs, the reviewing court then examines whether the statute “with uniformity” “affects” “every city or every village.” See 358 Wis. 2d 1, ¶ 101. This is not the first time we have examined the home rule amendment‘s uniformity requirement. We addressed the home rule amendment‘s uniformity requirement in Thompson v. Kenosha County, 64 Wis. 2d 673, 221 N.W.2d 845 (1974), and Van Gilder v. City of Madison, 222 Wis. 58, 267 N.W. 25 (1936). Both of these cases are constitutional home rule cases, interpreting and applying the same amendment we are currently interpreting and applying:
¶ 34. In Thompson, the Legislature passed
Sec. 70.99 is, on its face, uniformly applicable throughout the state. The legislature did not enact a statute which could only apply to Kenosha county, or as is often the case, Milwaukee county. Each county in the state has an equal right to decide to adopt a countywide assessor system. . . . Where a statute confers equal legal powers, that would seem sufficient to satisfy the uniformity requirement. Thus, for example, two cities may have identical powers, yet the respective city councils may enact entirely different sets of ordinances. The state could hardly be held to have violated the uniformity requirement in such a situation.
Id. at 687 (emphasis added). In short, since 1974 we have held that a statute satisfies the home rule amendment‘s uniformity requirement if it is, on its face, uniformly applicable to every city or village. Id.
¶ 35. We also considered the uniformity requirement in Van Gilder. There, we expressed skepticism toward the notion that a law could have a uniform impact on every city or village:
Was it the intention of the people that the legislature should be without power to enact any law affecting a city of 2,500 people unless that law at the same time
affected in the same way the City of Milwaukee, a metropolitan community having few if any interests akin to those of a small city of the fourth class? What was meant by uniformity? Was the law to be uniform in its application to the city of X with 2,500 population and affect it in the same way it affects the city of Milwaukee, a metropolitan community having a population of 600,000? In that sense there could hardly be a law affecting with uniformity every city. A law uniform in its application might work out one way in one city and in another way in another city depending upon the local situation and the way in which it was in fact administered and so “affect” them differently.
Van Gilder, 222 Wis. at 67 (emphasis added). We ultimately held, “[W]e can reach no other conclusion than that it was the intention of the people in the adoption of the [home rule] amendment to leave a large measure of control over municipal affairs with the legislature.” Id. at 71. We went on, “To construe the amendment as meaning that every act of the legislature relating to cities is subject to a charter ordinance unless the act of the legislature affected with uniformity every city from smallest to the greatest, practically destroys legislative control over municipal affairs . . . .” Id. (emphasis added).
¶ 36. In sum, our precedent—going back to at least 1936—confirms that facial uniformity is sufficient to satisfy the home rule amendment‘s uniformity requirement. As long as the statute, on its face, uniformly affects cities or villages throughout the State, the home rule amendment‘s uniformity requirement is satisfied.
When the legislature deals with local affairs as distinguished from matters which are primarily of state-wide concern, it can only do so effectually by an act which affects with uniformity every city. It is true that this leaves a rather narrow field in which the home-rule amendment operates freed from legislative restriction, but there is no middle ground. Either the field within which the home-rule amendment operates must be narrowed or the field within which the legislature operates must be narrowed, and as was pointed out in the Baxter Case, the amendment clearly contemplates legislative regulation of municipal affairs and there was no intention on the part of the people in adopting the home rule amendment to create a state within a state, an imperium in imperio.
Id. at 80-81. When the Legislature wants to legislate on a matter of local affairs, it may do so if the law, on its face, uniformly affects every city or village.
¶ 39. In this case, the Legislature banned residency requirements throughout Wisconsin by enacting
¶ 40. Finally, we address the Police Association‘s argument that it is entitled to relief and damages under
(1) Plaintiffs may bring suit under sec. 1983 for state officials’ violations of their rights under a specific provision in the Bill of Rights; (2) The Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions (these are commonly known as substantive due process rights); and (3) An action may be brought under sec. 1983 for a violation of procedural due process.
Casteel v. McCaughtry, 176 Wis. 2d 571, 578, 500 N.W.2d 277 (1993) (citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)). In other words, a person bringing a section 1983 claim under the Due Process Clause can base this claim on an alleged violation of a specific provision in the bill of rights, on an alleged violation of substantive due process, or on an alleged violation of procedural due process.
¶ 42. The Police Association makes no argument that its section 1983 claim is based on a specific provision in the Bill of Rights, nor does it argue a procedural due process violation; rather, throughout its briefing, it has referred exclusively to substantive due process. Accordingly, we turn to discuss whether the City violated the Police Association‘s substantive due process rights.
¶ 43. Substantive due process “protects individuals from ‘certain arbitrary, wrongful actions regardless of the fairness of the procedures used to implement them.’ ” Penterman, 211 Wis. 2d 458, ¶ 39 (some quotation marks omitted) (quoting Zinermon, 494 U.S. at 125). “The test to determine if state conduct complained of violates substantive due process is if the conduct ‘shocks the conscience . . . or interferes with rights implicit in the concept of ordered society.’ ” State ex rel. Greer v. Schulpius, 353 Wis. 2d 307, ¶ 57 (quoting State v. Schulpius, 2006 WI 1, ¶ 33, 287 Wis. 2d 44, 707 N.W.2d 495). The Police Association argues both that the City‘s actions shock the conscience and that its actions interfere with a liberty interest. We address each argument in turn.
i. Whether The City‘s Actions Shock The Conscience
¶ 44. Actions shock the conscience when they offend “even hardened sensibilities” or “the decencies of civilized conduct.” Rochin v. California, 342 U.S. 165, 172-73 (1952); see also Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.) (“[T]he ‘shock the conscience’ standard requires a high level of outrageousness . . . .” (citing Collins, 503 U.S. at 128)); Harron v. Town of Franklin, 660 F.3d 531, 536 (1st Cir. 2011) (describing acts that shock the conscience as “truly outrageous, uncivilized, and intolerable“). For example, in Rochin v. California, 342 U.S. 165 (1952), the case that first developed the shock the conscience test, police officers illegally broke into Rochin‘s home, jumped on him,
¶ 45. In the present case, the Common Council passed, and the Mayor signed, a resolution, which affirmed the section of its City charter requiring city employee residency. Relying on the home rule amendment, the resolution claimed that the City could still enforce its residency requirement because its charter (section 5.02) trumped the state statute (
¶ 46. Simply stated, these actions do not “shock the conscience“—they do not offend “even hardened sensibilities” or “the decencies of civilized conduct.” Here, we had a genuine legal dispute as to which law,
ii. Whether The City‘s Actions Deprived The Police Association Of A Fundamental Right Or Liberty
¶ 47. The Supreme Court of the United States “has always been reluctant to expand the concept of substantive due process because guideposts for reasonable decision making in this unchartered area are scarce and open-ended.” Collins, 503 U.S. at 126. This is because “[b]y extending constitutional protection to an asserted right or liberty interest, [the Court], to a great extent, place[s] the matter outside the arena of public debate and legislative action.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Accordingly, “[t]he doctrine of judicial self-restraint requires [a court] to exercise the utmost care whenever [a court] [is] asked to break new ground in this field,” Collins, 503 U.S. at 126, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the [m]embers of [a court],” Glucksberg, 521 U.S. at 720. In determining whether an asserted right falls within the purview of substantive due process, the Supreme Court has “regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation‘s history and tra
¶ 48. Here, the Police Association has not asserted a fundamental right or liberty that is deeply rooted in this Nation‘s history and tradition. Rather, the Police Association claims that
¶ 49. For example, the Police Association relies on Hewitt v. Helms, 459 U.S. 460 (1983) for the proposition that a liberty interest may arise from two sources: the Due Process Clause or the laws of a state. 459 U.S. at 466. In Hewitt, the Supreme Court of the United States ultimately concluded that the “statutory framework governing the administration of state prisons gave rise to a liberty interest . . . , but . . . the procedures afforded [the] respondent were ‘due process’ under the Fourteenth Amendment.” Id. (emphasis added). Throughout its opinion, the Court made reference to the state regulation giving rise to procedural due process protections: “procedural guidelines,” “procedural rights,” “procedural requirements,” and “procedural safeguards.” Id. at 471, 472, 473, 475. There, the “Due Process Clause require[d] only an informal nonadversary review of evidence . . . in order to confine an inmate feared to be a threat to institutional security to administrative segregation.” Id. at 474 (emphasis added).
¶ 50. We recognize that the Supreme Court, in cases like Hewitt, has “repeatedly held that state
¶ 51. To summarize, first, we hold that
By the Court.—The decision of the court of appeals is affirmed in part and reversed in part.
¶ 52. REBECCA G. BRADLEY, J. (concurring). I agree that
¶ 53. I cannot agree with this interpretation based on the text of the home rule amendment and its original meaning. After examining the constitutional debates and practices surrounding the amendment‘s adoption, I conclude that a legislative enactment preempts a conflicting city charter ordinance under the home rule amendment only when the enactment both concerns a matter of statewide concern and with uniformity affects every city or village. See
I. INTERPRETATION OF THE HOME RULE AMENDMENT
¶ 54. The methodology used to interpret amendments to the Wisconsin Constitution is well estab
¶ 55. To understand the original meaning of the home rule amendment, I begin with the text of the amendment. The home rule amendment provides, in pertinent part: “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.”
¶ 56. Much of this court‘s precedent, including our recent decision in Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶ 101, 358 Wis. 2d 1, 851 N.W.2d 337, fails to apply the plain meaning of the home rule
[O]ur home rule case law instructs us that, when reviewing a legislative enactment under the home rule amendment, we apply a two-step analysis. First, as a threshold matter, the court determines whether the statute concerns a matter of primarily statewide or primarily local concern. If the statute concerns a matter of primarily statewide interest, the home rule amendment is not implicated and our analysis ends. If, however, the statute concerns a matter of primarily local affairs, the reviewing court then examines whether the statute satisfies the uniformity requirement. If the statute does not, it violates the home rule amendment.
Majority op., ¶ 25 (quoting Madison Teachers, 358 Wis. 2d 1, ¶ 101) (emphasis added). To conclude as the majority does, that analysis of the home rule amendment stops if the legislative enactment at issue addresses an issue primarily of statewide concern and that the uniformity requirement applies only to legislation concerning issues primarily of local concern, simply does not comport with the text of the amendment.
¶ 57. As emphasized above, Madison Teachers did not purport to rely on the text of the home rule amendment to craft the analytical framework employed by the majority opinion here. Instead, Madison Teachers relied on case law concerning the home rule amendment dating back to 1926. Id., ¶¶ 96–101, 117 (citing State ex rel. Ekern v. City of Milwaukee, 190 Wis. 633, 640, 209 N.W. 860 (1926)). The problem with
¶ 58. Where even long-standing precedent contravenes the constitution, it is ripe for reconsideration.
“Stare decisis is not . . . a universal, inexorable command,” especially in cases involving the interpretation of the Federal Constitution. Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that “depar[t] from a proper understanding” of the Constitution.
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 954–55 (1992) (Rehnquist, C.J., concurring in part, dissenting in part) (alteration in original) (internal citations omitted). “The principle of stare decisis does not compel us to adhere to erroneous precedents or refuse to correct our own mistakes.” State v. Outagamie Cty. Bd. of Adjustment, ¶ 31, 244 Wis. 2d 613, 628 N.W.2d 376. “Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question.” Casey, 505 U.S. at
B. Constitutional debates and practices
¶ 59. The plain meaning interpretation of the home rule amendment explained above finds support in the historical context in which the home rule amendment was adopted, including relevant statements made by the framers of the amendment as well as public statements made by proponents of the amendment who communicated the meaning of the amendment to voters. Understanding the context in which the home rule amendment was proposed and ratified is essential because “[t]he meaning of the constitutional provision having been once firmly established as of the time of its adoption, such meaning continues forever, unless it is changed or modified by the Constitution.” State ex rel. Bare v. Schinz, 194 Wis. 397, 403, 216 N.W. 509 (1927). Unlike statutory interpretation where consultation of extrinsic sources is typically limited to resolving ambiguities,6 examination of constitutional debates and historical practices
The reasons we employ a different methodology for constitutional interpretation are evident. Constitutional provisions do not become law until they are approved by the people. Voters do not have the same access to the “words” of a provision as the legislators who framed those words; and most voters are not familiar with the debates in the legislature. As a result, voters necessarily consider second-hand explanations and discussion at the time of ratification. In addition, the meaning of words may evolve over time, obscuring the original meaning or purpose of a provision. The original meaning of a provision might be lost if courts could not resort to extrinsic sources. Finally, interpreting a constitutional provision is likely to have a more lasting effect than the interpretation of a statute, inasmuch as statutory language can be more easily changed than constitutional language. Thus, it is vital for court decisions to capture accurately the essence of a constitutional provision.
Dairyland Greyhound Park, 295 Wis. 2d 1, ¶ 116 (Prosser, J., concurring in part, dissenting in part). Consultation of the contemporaneous writings of the framer of a constitutional amendment may aid in ascertaining original meaning “not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood.” Antonin Scalia, A Matter of Interpretation 38 (Amy Gutmann ed., 1997).
¶ 60. Accordingly, it is first essential to understand the context in which the home rule amendment was drafted and proposed. The home rule amendment arose as a direct result of this court‘s decision in State ex rel. Mueller v. Thompson, 149 Wis. 488, 137 N.W. 20 (1912).7 In Mueller, this court invalidated a 1911 statute, known as the “home rule act,” which authorized cities to amend their city charters. Id. at 490, 493–94, 497. The “home rule act” at issue in Mueller provided:
“Every city, in addition to the powers now possessed, is hereby given authority to alter or amend its charter, or to adopt a new charter by convention, in the manner provided in this act, and for that purpose is hereby granted and declared to have all powers in relation to the form of its government, and to the conduct of its municipal affairs not in contravention of or withheld by the constitution or laws, operative generally throughout the state.”
Id. at 493–94. Operating under the “home rule act,” the City of Milwaukee‘s Common Council adopted a resolution to amend its charter to allow the City to operate an ice plant. Id. at 498–99 (Timlin, J., concurring). After the resolution passed, the City Clerk refused to place the proposed amendment of the City‘s charter on the ballot. Id. at 489. The State pursued a mandamus action against the City Clerk that the circuit court granted. Id. This court reversed and held that the City Clerk had no duty to place the proposed amendment to the City‘s charter on the ballot because the “home rule act” that granted the authority to cities to amend their charters was an unconstitutional delegation of legislative power. Id. at 491–92, 497. The court then alluded to the possibility of a home rule amendment to our constitution:
It is correctly claimed on the one side, and not effec
tually, if at all, denied upon the other, that in most cases where legislation of the nature of that in question has been adopted it was preceded by a constitutional amendment expressly authorizing it, while in those not so preceded the legislation was condemned as unconstitutional.
¶ 61. Following the invalidation of the “home rule act” in Mueller, work on a home rule amendment culminated in a joint resolution “[t]o amend section 3 of article XI of the constitution, relating to powers of cities and villages”8 that passed both houses in 1921 and 1923 and was set for the 1924 general election. Wisconsin Legislative Reference Bureau, State of Wisconsin Blue Book 219 (2015–16). A joint resolution set forth the amendment, in pertinent part:
Resolved by the senate, the assembly concurring, That section 3 of article XI of the constitution be amended to read: (Article XI) Section 3: Cities and villages organized pursuant to state law
It shall be the duty of the legislature, andthey are hereby empowered, to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of state-wide concern as shall with uniformity affect every city or every village. The method of such determination shall be prescribed by the legislature.to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations.
Jt. Res. 18-S (Wis. 1923)(italics and internal quotation
¶ 62. Not only was the home rule amendment an outgrowth of our decision in Mueller, but the attorney who represented the City Clerk in that case, Daniel W. Hoan, was a primary drafter of the home rule amendment. See Daniel W. Hoan, Brief for Wisconsin League of Municipalities as Amicus Curiae at 2 (No. 252) in Baxter, 195 Wis. 437. Hoan, who served as mayor of Milwaukee from 1916–1940,10 filed an amicus brief on behalf of the League of Municipalities in Baxter, in which he set forth a detailed account of his intent in drafting the home rule amendment. Id. Hoan first explained in his amicus brief in Baxter that he “drafted this Home Rule Amendment to overcome the difficulties pointed out in [Mueller]” and that he presented the amendment‘s wording and meaning to city attorneys around the state and to legislative committee members and that during those presentations “no other interpretation of this amendment was there offered except as outlined in this brief.” Id. at 2–3. He then explained that he determined that striking certain language from Article XI, Section 3, pertaining to legislative authority, to create the grant of authority to cities and villages, rather than adding a new section to the constitution, would provide greater clarity as to the purpose and meaning of the home rule amendment. Id. at 8. He stated that the home rule amendment makes “certain that cities and villages shall have a grant of power to determine their local affairs and govern
We ask the court to particularly take note of the words “only” and “uniformity.” We ask the court likewise to note carefully the wording of this clause as leaving no doubt that all parts of it are descriptive of the type of legislative act that the local power is subject to. We submit that this wording is not ambiguous as other constitutional Home Rule amendments may be. It does not say—subject to state laws, subject to state laws of state-wide concern, or subject to laws uniformly affecting cities, but it does say—subject only to such state laws as are therein defined, and these laws must meet two tests: First—do they involve a subject of state-wide concern, and second—do they with uniformity affect every city or village?
Id. at 13–14 (emphasis added) (italics in original). There could not be a clearer confirmation of the original meaning of the home rule amendment than this. The person who drafted the home rule amendment specifically clarified that a legislative enactment must both involve a matter of statewide concern and with uniformity affect every city or every village.
¶ 63. In addition to the framer‘s interpretation of the home rule amendment, between 1919 and 1924, newspapers from across the state published content addressing the need for a home rule amendment and providing voters with information regarding the mean
¶ 64. The sentiment that a home rule amendment was necessary to not only free the legislature from addressing purely local matters, but also to grant authority to cities and villages to adopt amendments to their own charters to deal with such matters was repeated in several newspaper articles. In 1921, The Capital Times reported:
While the amendment was broad in its application covering other cities of the state, the principle purpose of passing it was to aid Milwaukee. It is estimated that over 25 percent of the measures before the Wisconsin legislature directly affecting Milwaukee and a home rule [] could be passed upon locally if home rule were in force.
Home Rule Amendment Is Nullified, The Capital Times, Jan. 27, 1921, at 1. Similarly, the Oshkosh Daily Northwestern reported that according to Mayor Hoan, “City legislation of only local interest takes up at least a month of the legislature‘s time each session.” Income Tax Bills Posted for Hearing, Oshkosh Daily Northwestern, Mar. 2, 1921, at 11. The Appleton Post-Crescent stated “one-third of state legislation has to do
¶ 65. Along with the need for the home rule amendment, newspaper content also confirms the preservation of state legislative power over cities and villages, which was communicated to voters prior to the 1924 general election. Mayor Hoan explained: ”The state will not lose its power over cities . . . for it can prohibit them from doing anything by making state wide application to all measures passed. Cities will be given a free hand in local affairs, without becoming free from state legislation. . . .” Income Tax Bills Posted for Hearing, Oshkosh Daily Northwestern, Mar. 2, 1921, at 11 (emphasis added). In a question and answer column that appeared in The Capital Times, political science Professor Joseph P. Harris explained that “Home rule secures to cities and villages a larger share in the control over matters of purely local concern.” Joseph P. Harris, Questions and Answers, The Capital Times, Jan. 19, 1924, at 9. The Secretary of the
While this home rule amendment gives cities and villages greater power of local self-government, it in no way ties the hands of the state legislature in matters of state-wide concern . . . It does prevent the legislature from interfering in purely local affairs but it does not prevent the state from passing any law in which the state as a whole is interested. Any general law relative to public health, education, the regulation of public utilities, the police power, fire protection, or any other subject of state-wide interest may be enacted by the legislature anytime provided it applies to all cities or villages. Of course, any home rule charter conflicting with any of these general laws would be void.
Henry Noll, Home Rule Law Big Step Ahead, Urges M‘Gregor, Wisconsin State Journal, July 20, 1924. (emphasis added).
¶ 66. Newspaper articles leading up to the 1924 general election reveal that proponents of the home rule amendment communicated two main points about the amendment to voters. First, the home rule amendment was necessary to grant authority to cities and villages to address matters of purely local concern,
II. WISCONSIN STAT. § 66.0502
¶ 67. As the majority opinion describes,
¶ 68. In determining whether a legislative enactment pertains to a local or a statewide concern, our court has outlined three areas of legislative enactment: (1) Those that are “exclusively of state-wide concern;” (2) those that “may be fairly classified as entirely of local character;” and (3) those which “it is not possible to fit . . . exclusively into one or the other of these two categories.”
State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 526–27, 253 N.W.2d 505 (1977) (footnotes omitted). As for this third category, referred to as a “mixed bag,” courts have applied “the test of paramountcy” to determine whether “a challenged legislative enactment, state or local, possessing aspects of ‘state-wide concern’ and of ‘local affairs,’ is primarily or paramountly a matter of ‘local affairs and government’ under the home rule amendment or of ‘state-wide concern . . . .‘” Id. at 527–28.
¶ 69. However, applying the original meaning of the home rule amendment eliminates any need for the “test of paramountcy“—a judicial creation conspicuously absent from the text of the constitution. This is because the purpose of the home rule amendment, as discussed in Part I, was to empower cities and villages to address matters of purely local concern rather than require legislative action to resolve these matters. When a legislative enactment involves any degree of statewide concern, it will not violate the home rule amendment so long as the enactment with uniformity affects every city or every village.
¶ 70. Here,
B. Uniformity requirement
¶ 71. As referenced above,
¶ 72. Under the home rule amendment, a legislative enactment prevails over a conflicting city charter ordinance when the enactment both concerns a matter of statewide concern and with uniformity affects every city or village. See
¶ 73. Although I disagree with the majority‘s interpretation of the home rule amendment, I agree that
¶ 74. ANN WALSH BRADLEY, J. (concurring and dissenting). I agree with the majority that the Police Association is not entitled to relief or damages. Majority op., ¶ 8. Likewise, I agree that the purpose of the Home Rule Amendment is to grant power and self-governance to cities and villages, providing them with greater autonomy over local affairs. Majority op., ¶ 2.
¶ 75. I write separately, however, because the majority turns that purpose on its head. Instead of freeing municipalities from interference by the legislature when dealing with local affairs, the majority limits the power and restrains the ability of municipalities to self-govern.
¶ 76. In reaching its conclusion that
¶ 77. Contrary to the majority, I conclude that the city of Milwaukee may enforce its residency requirement under the powers granted to local municipalities by the Wisconsin Constitution‘s Home Rule Amendment. I would therefore affirm the court of appeals’ determination that
I.
¶ 78. At issue here is whether the Wisconsin Constitution‘s Home Rule Amendment grants Milwaukee, through its charter ordinance, the power to enforce its local residency requirement despite the legislative enactment of
¶ 79. Municipalities may exercise constitutional home rule authority by charter ordinance.1
¶ 80. For over 75 years, pursuant to a charter ordinance, Milwaukee has required its employees to
¶ 81. However, in 2013 the Wisconsin legislature enacted
¶ 82. The legislative history of
¶ 83. Wisconsin municipalities have two distinct sources of home rule authority—constitutional and statutory. Constitutional home rule is expansive and statutory home rule is limited. Contrary to “the direct and expansive delegation of power to municipalities
¶ 84. Only cities and villages are granted constitutional home rule authority. Other units of local government, such as counties, towns and school districts, have administrative home rule authority pursuant to statute. See, e.g.,
¶ 85. Milwaukee‘s residency requirement was enacted under “the direct and expansive delegation of power to municipalities under
II.
¶ 86. The majority purports to follow the two-step analysis of the Home Rule Amendment set forth in Madison Teachers, Inc. v. Walker, 2014 WI 99,
¶ 87. Although the majority summarizes the parties’ positions and identifies their interests, it reaches its initial conclusion without any analysis whatsoever of the law or the facts of record. Initially, the majority concludes that
¶ 88. Remarkably, the majority declines to apply the test of paramountcy and again, without any analysis whatsoever, ultimately arrives at a contrary conclusion. It “assume[s], without deciding, that
¶ 89. In applying the second step of the analysis, the majority contends that “[f]or purposes of the home rule amendment, an enactment is uniform when it is facially uniform.” Majority op., ¶ 7. Without any consideration of how the legislative enactment “with uniformity shall affect,” the majority summarily concludes that
¶ 90. The majority‘s conclusion contravenes the well-recognized purpose of the Home Rule Amendment, which is to grant power and self-government to municipalities, rather than the legislature.
¶ 91. Adopted in 1924, “the home rule amendment was intended to provide cities and villages with greater autonomy over local affairs.” Madison Teachers, 358 Wis. 2d 1, ¶ 89; see also State ex rel. Sleeman v. Baxter, 195 Wis. 437, 445, 219 N.W. 858 (1928) (“The recognized purpose of this amendment was to confer upon cities and villages a measure of self-government not theretofore possessed. It is a grant of power to cities and villages.“).4
¶ 92. Significantly, this grant of local power was intended to free municipalities from legislative interference. Sleeman, 195 Wis. at 447. This court explained that “[i]n ascertaining the meaning of the home-rule amendment we should also take into account the fact that the legislature was not hostile to a larger measure of local self-government by cities.” Van Gilder v. City of Madison, 222 Wis. 58, 71, 267 N.W. 25 (1936).
IV.
¶ 94. Not only does the majority contravene the well-recognized purpose of the Home Rule Amendment, it ignores the facts of record regarding statewide and local interest. Without consideration of the evidence in the record, the majority “assume[s], without deciding, that
¶ 95. In its discussion of the purported statewide interest behind
¶ 97. Although the legislative declaration is due great weight deference, it is certainly not dispositive. Van Gilder, 222 Wis. at 73. As the Van Gilder court explained, this court is required to make the ultimate determination when there is a controversy between municipalities and the state regarding whether a matter is of local or state-wide concern:
The home-rule amendment does not lodge the power to determine what is a ‘local affair’ or what is a ‘matter of state-wide concern’ either with the municipality or with the legislature or attempt to define those terms. In the event of a controversy between municipalities and the state therefore the court is required to make the ultimate determination.
¶ 98. It is the unique role of the courts to determine the constitutionality of statutory provisions. Marbury v. Madison, 5 U.S. 137, 177 (1803). No legislative declaration can usurp this power or release us of this duty. Consequently, as the court of appeals explained, “the argument that residency requirements are a matter of statewide concern simply because the legislature said so is not persuasive because it is unsubstantiated.” Black, 364 Wis. 2d 626, ¶ 21.
The effect on the state . . . is never substantiated, and only given lip-service with broad policy arguments. This complete dearth of evidence to support the legislature‘s contention does not suffice under the law.
. . .
The problem with the Police Association‘s argument, however, is that no evidence in the record allows us to conclude that
§ 66.0502 was drafted with the public‘s health, safety or welfare in mind. . . . Instead, the sole reason we can delineate for the statute‘s existence is the gutting of Milwaukee‘s long-standing residency requirement.. . .
More importantly, there is no evidence in this record supporting this assertion [that
Wis. Stat. § 66.0502 protects employees against ‘unfairly restrictive’ conditions].
¶ 100. Not only does the majority ignore the dearth of evidence supporting a statewide interest, it fails to address the overwhelming evidence in support of the city of Milwaukee‘s local interest in enforcing its residency requirements. The majority‘s “assume without deciding” approach allows it to avoid discussion of the dire consequences this legislation will inflict on the city of Milwaukee.
¶ 102. In this case, the Legislative Fiscal Bureau prepared a report detailing the expected impact of
¶ 103. The projected outflow of Milwaukee‘s city employees will cause a reduction in the tax base of $622 million in residential land values and $27 million in retail property values. As Judge Kessler explained in her concurrence to the court of appeals decision, “[a] loss of $649 million from the Milwaukee tax base will obviously directly impact Milwaukee‘s ability to pay for necessary infrastructure, services and wages. There is no evidence in the record that any other
¶ 104.
¶ 105. Additionally, the city of Milwaukee Police Chief‘s affidavit explains that having police officers live in the city is “critical to the police force‘s legitimacy and perceived integrity.” Black, 364 Wis. 2d 626, ¶ 29. According to Police Chief Flynn, community policing increases the effectiveness of the police force and the safety of the city:
We have an ongoing struggle, as every urban police department does, to maintain our credibility in the community we police. The residency requirement helps to prevent the perception . . . that officers are outsiders, without any empathy for those they are policing, because [they] invade residents’ neighborhoods and later return to distant retreats . . .
. . .
Police officers who live in the community they police have an increased motivation to maintain a safe environment for themselves, their families, their co-officers, and the community as a whole.
Id. Commenters agree with this view, explaining that cities with residency requirements have experienced the benefit of improved neighborhoods and lower crime. See, e.g., Joe Mulligan, Not in Your Backyard: Ohio‘s Prohibition on Residency Requirements for Police Officers, Firefighters, and Other Municipal Employees, 37 U. Dayton L. Rev. 351, 369 (2012).
¶ 106. Given the overwhelming evidence of the effect that
V.
¶ 107. The majority further avoids the damaging facts in the record by creating a heretofore unknown facial uniformity rule that essentially repeals the Home Rule Amendment. As the Madison Teachers’ court explained, “home rule challenges are, by necessity, fact-specific inquiries . . . .” 358 Wis. 2d 1, ¶ 113.
¶ 108. Avoiding discussion of the facts of this case, the majority contends that “[f]or the purposes of the home rule amendment, an enactment is uniform when it is facially uniform.” Majority op., ¶ 7. After making this pronouncement, the majority summarily concludes that because the text of
¶ 110. Relying on Thompson v. Kenosha County, 64 Wis. 2d 673, 676, 221 N.W.2d 845 (1974), the majority asserts that “facial uniformity is sufficient to satisfy the home rule amendment‘s uniformity requirement.” Majority op., ¶ 36. However, Thompson is distinguishable because it examined legislation that gave, rather than eliminated, municipalities’ power to govern their local affairs. 64 Wis. 2d at 687.
¶ 111. As the Thompson court explained, conferring equal power satisfies the uniformity requirement because municipalities retain the right to enact the ordinances they choose:
Each county in the state has an equal right to decide to adopt a countywide assessor system. The residents of all cities, villages, and towns have an equal right to participate in making that decision through their right to vote for and petition county board members. Where a statute confers equal legal powers, that would seem sufficient to satisfy the uniformity requirement. Thus, for example, two cities may have identical powers, yet the respective city councils may enact entirely different sets of ordinances.
Id. Thompson thus concluded that “[t]he state could hardly be held to have violated the uniformity requirement in such a situation.” Id.
¶ 113. In contrast, the elimination of residency requirements restricts, rather than expands a grant of local power. Here, municipalities without an employee residency requirement will be unaffected by
¶ 114. Admittedly, Van Gilder presents a more challenging precedent. It sends mixed messages and ultimately lands on a constitutional interpretation that is at odds with the text of the constitutional Home Rule Amendment.
¶ 115. Initially Van Gilder signals an interpretation that honors the language of the constitutional amendment. “The power[] of municipalities . . . to enact an organic law dealing with local affairs and government is subject to such acts of the legislature relating thereto as are of state-wide concern and affect with uniformity all cities.” Van Gilder, 222 Wis. at 73.
¶ 116. Later, however, Van Gilder lands on an interpretation that is at odds with the text of the Home Rule Amendment: “when the legislature deals with local affairs as distinguished from matters which are primarily of state-wide concern, it can only do so effectually by an act which affects with uniformity every city.” Id. at 80–81.
¶ 117. The latter misguided interpretation of the constitutional Home Rule Amendment has been ad
¶ 118. In Madison Teachers, this court interpreted the Home Rule Amendment to mean that legislative enactments will trump local laws if they either address a statewide matter or uniformly affect every municipality. 358 Wis. 2d 1, ¶ 101. If the matter is primarily a local concern, Madison Teachers instructs that the court must determine whether the statute uniformly affects every municipality. Id. If the statute satisfies the uniformity requirement, it does not violate the Home Rule Amendment. Id. I dissented in Madison Teachers.
¶ 119. Contrary to the majority‘s interpretation, I agree with the amicus briefs of the League of Wisconsin Municipalities and the Wisconsin Institute for Law and Liberty, as well as the brief of the city of Milwaukee and the unanimous court of appeals’ observation that “the test articulated in Madison Teachers is somewhat at odds with the plain language of the home rule amendment.” Black, 364 Wis. 2d 626, ¶ 15.
¶ 120. The majority here continues this error. I interpret the home rule constitutional amendment to mean what it says: the legislature can enact a law superseding a municipality‘s charter ordinance if the law is of “state wide concern as with uniformity shall affect every city or every village.”8
¶ 121. A legislative act must be of statewide concern and then it must apply uniformly. The majority‘s interpretation provides otherwise. It states that a legislative act can supersede a city‘s charter ordinance
¶ 122. Additionally, the majority also ignores the lack of uniform effect. Although
¶ 123. The effect on other Wisconsin municipalities is simply not addressed by the majority opinion. As the court of appeals aptly states, “the notion that a statute purporting to gut the tax bases and compromise the neighborhood integrity of all municipalities would pass both houses of the legislature defies logic.” Id., ¶ 33. The majority‘s newly created facial uniformity rule eliminates the requirement that courts review the factual particulars of a home rule challenge.
¶ 124. Under the majority opinion, the only legislation that would not uniformly affect all municipalities is one that would overtly single out a particular city or village. The legislature is now free to search for laws unique to Milwaukee, Madison, Green Bay, or any other municipality of its choosing and enact facially neutral legislation abrogating individual local laws.
¶ 125. Ultimately, the majority opinion disregards the fundamental rule that “we interpret the home rule amendment with an eye toward preserving the constitution.” Id., ¶ 32 (citing State ex rel. Ekern v. City of Milwaukee, 190 Wis. 633, 639, 209 N.W. 860 (1926)). As the court of appeals warned, a facial uniformity standard “all but obliterate[s] the home rule amendment, which is not only illogical but also contrary to law.” Id.
¶ 127. I am authorized to state that Justice SHIRLEY S. ABRAHAMSON, J. joins this concurrence/dissent.
Notes
United States v. Nixon, 418 U.S. 683, 703 (1974)(quoting Marbury v. Madison, 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed. 60 (1803))(internal citation omitted). See Milwaukee Charter 5–02.In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. . . . Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison that “(i)t is emphatically the province and duty of the judicial department to say what the law is.”
There is no express limitation upon the power of the legislature. Such limitations as may be found therein are limitations upon the exercise of the power granted and not limitations upon the power of the legislature. Power is granted to cities and villages ‘to determine their local affairs and government subject only to this constitution and to such enactments of the legislature of state-wide concerns as shall with uniformity affect every city or every village.’ The phrase ‘subject only to this constitution,’ etc., is a phrase of limitation, but it is a limitation upon the power granted to cities and villages.
195 Wis. at 445.Power is granted to cities and villages “to determine their local affairs and government, subject only to the constitution and to such enactments of the legislature of state-wide concern as with uniformity shall affect every city or every village.” The phrase “subject only to this Constitution,” etc., is a phrase of limitation, but it is a limitation upon the power granted to cities and villages. Nowhere do we find words of limitation upon the power of the Legislature.
222 Wis. at 73-74.The home-rule amendment does not lodge the power to determine what is a “local affair” or what is a “matter of state-wide concern” either with the municipality or with the legislature or attempt to define those terms. In the event of a controversy between municipalities and the state therefore the court is required to make the ultimate determination. In the first instance, the determination of what is a “local affair” and what is a “matter of state-wide concern” would seem to be for the legislature for the reason that such a determination must involve large considerations of public policy. Even though the determination made by it should be held not to be absolutely controlling, nevertheless it is entitled to great weight because matters of public policy are primarily for the legislature.
The argument that residency requirements are a matter of statewide concern simply because the legislature said so is not persuasive because it is unsubstantiated. Neither the Police Association nor the trial court point to any facts supporting this claim; the Police Association merely argues on appeal that the Legislature can do what it wants. We disagree. . . . In this case, we cannot conclude that “because the legislature said so” is reason enough to affirm the trial court when there are no facts to support such a conclusion. The facts in the record, exemplified by the Legislative Fiscal Bureau Paper, make clear that the goal of
Wis. Stat. § 66.0502 was to target the City of Milwaukee. Nearly every portion of the Legislative Fiscal Bureau paper‘s analysis explains in great detail how Milwaukee will be affected. The effect
At the time Wisconsin debated the Amendment, the problem of the day was the Legislature enacting city-specific legislation, addressing purely local issues, because cities lacked sufficient legal power to regulate their own affairs. The Amendment sought to cure this problem by giving cities general law-making authority so the Legislature would no longer have to pass such laws.
- May a municipality disregard legislative prohibitions on certain conditions of municipal employment, by simply passing an ordinance disputing the legislature‘s policy determination and asserting [h]ome [r]ule authority to do so, without first seeking a declaration as to the rights and obligations of the parties?
- Should a municipality be required to prove “beyond a reasonable doubt” that a statute is an unconstitutional overreach of its authority under the [h]ome [r]ule [a]mendment?
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.