Court: Milwaukee residency requirement trumps state law

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A court of appeals has upheld the city of Milwaukee’s residency requirement for city employees, striking down a state law passed in 2013.

Tuesday’s decision involves a lawsuit the Milwaukee Police Association filed against the city of Milwaukee in July 2013 after the Milwaukee Common Council adopted a resolution eight days earlier directing city officials to continue enforcing Ordinance 5-02, which requires all city employees to live in the city of Milwaukee.

The police union contended that the ordinance and resolution conflicted with an amendment passed in the 2013-15 state budget that removed all local residency requirements except for police officers, firefighters or the like to reside within 15 miles of a local government.

The District 1 Court of Appeals ruled Tuesday that the amendment does not preempt the ordinance, which has been in use for more than 75 years, because the legislation did not involve a matter of statewide concern and did not equally affect all local governments.

“Consequently, the City of Milwaukee may continue to enforce City Ordinance 5-02, which remains good law,” according to Tuesday’s decision.

The court noted that the Legislative Fiscal Bureau, in one of its papers published before the amendment was passed, aside from citing a study that while that about 114 municipalities and 30 counties and municipalities restrict where their employees live, primarily focused on the amendment’s impact in Milwaukee.

“The sole reason we can delineate for the statute’s existence is the gutting of Milwaukee’s long-standing residency requirement,” Presiding Judge Patricia Curley wrote. “We cannot conclude that such a measure involves the health, safety, or welfare of the people of Wisconsin in any demonstrable way.”

Presiding Judge Joan Kessler wrote a concurring opinion, joined by Judge Kitty Brennan, to point out additional monetary effects of the home rule amendment on the city, which shows that the statute is only of local concern, including how a consulting firm had predicted that 60 percent of Milwaukee employees would become non-residents, resulting in a loss of more than $54 million in retail sales and a loss of $649 million from the Milwaukee tax base. Follow @erikastrebel