BENCH BLOG: Thoughtful decision could have statewide effect

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Milwaukee County judge determines power of new Wisconsin legislation

A new state statute trumps local governments’ residency rules in a case decided in Milwaukee County Circuit Court.

The city of Milwaukee has had a residency requirement since 1938. Any city employee not living within the city’s limits could be terminated. Milwaukee Police Association and Milwaukee Professional Firefighters Association have long bristled against the requirement.

Newly enacted legislation – sec. 1270 of 2013 Wis. Act 20; statute sec. 66.0502 – prohibits residency requirements for employees of local government units: counties, cities, villages, towns and school districts.

The legislation took effect July 2, 2013 and made any residency requirement then on the books unenforceable. On July 10, the police association sued the city seeking a declaration that the city’s residency ordinance could no longer be enforced against city employees. The firefighters association intervened in early September.

The three litigants then filed summary judgment motions in Milwaukee Police Association, et al. v. City of Milwaukee, Milwaukee County Case No. 13-CV-5977, with Judge Paul Van Grunsven presiding.

Home-rule vs. statewide concern

The city argued that a residency requirement is a matter of managing its local affairs pursuant to the “home rule amendment” to the Wisconsin constitution. This amendment provides that municipalities may determine local affairs subject only to “enactments of the legislature [that are] of statewide concern.”

The city asserted that the 75-year history of an enforced residency requirement suggests local interests are being served. These interests include the presumed motivation of employees to serve their community and invest in its future, longevity in and loyalty to the city, and the efficient delivery of local services, not least emergency services.

The city also argued that a residency rule has a positive effect on the city’s property tax base, which is a substantial portion of local revenue. This local revenue pays the salaries of city employees. Control of local purse strings is an essential local concern.

The city expressed apprehension that upwards of 60 percent of city employees may move out of the city without a residency requirement, thus eroding the tax base.

The problem with that argument is that even Tom Barrett, mayor of Milwaukee, conceded that it is difficult to predict the effect of the new nonresidency statute on the tax base.

In contrast, the associations argued that employment and employer-employee relations are statewide concerns (e.g., Ch. 103, Employment and Ch. 111, Employment Relations). These include the protection of employees against unfairly restrictive employment conditions.

Moreover, according to Van Gilder v. City of Madison, the landmark case in this area of jurisprudence, police and fire protection is a matter of statewide concern. Although municipalities carry out this protection, it is because legislative enactments delegate this to them rather than it deriving from the home-rule amendment.

The associations also argued that sec. 66.0502 specifically states that public employee residency requirements are a matter of statewide concern. But does saying it’s so make it so?

The Van Gilder court decided that when the Legislature declares a matter to be of statewide concern, that declaration is entitled to “great weight” because it lies within the Legislature’s province of public policy considerations.

Paramountcy test

Van Grunsven analyzed the issue based on case law setting forth the three categories of legislative enactment: 1) exclusively statewide concern; 2) exclusively local character; and 3) mixed – not exclusively one or the other.

When, as here, a matter can be categorized as mixed, that is, evincing both statewide and local concerns, the courts must determine whether it is primarily one or the other. This is called the “test of paramountcy.”

In comparing the two sets of concerns, Van Grunsven decided that statewide concerns outweighed local concerns. Thus, statewide concerns are paramount.

Constitutional liberty interest

The police association argued that sec. 66.0502 creates a liberty interest for municipal employees to be free from a residency requirement as a condition of employment. Accordingly, if the city enforces its local residency ordinance it would deprive city employees of their due process rights under sec. 1983.

The city responded that the new statute doesn’t create something as fundamental as a constitutional liberty interest for employees, but merely a limitation on the action of municipalities as employers to hire only those employees who reside within the jurisdictional limitations of the city.

Van Grunsven noted this case-law standard: “A State creates a protected liberty interest by placing substantive limitations on official discretion.” Applying this standard, he determined that the statute places a substantive limitation on the city’s discretion to hire only city residents. Thus, the city’s argument was fatally undermined.

However, there has been no deprivation of employees’ due process rights to date because the three litigants had stipulated the city would not enforce the residency rule during the pendency of this case.

Final decision

Van Grunsven declared that sec. 66.0502 relates to a matter of statewide concern and therefore the city’s residency ordinance is void and unenforceable.

He also ruled that the new statute creates a liberty interest in being free of residency requirements as a condition of municipal employment. But he dismissed the sec. 1983 claim because the residency rule had not been enforced since the statute took effect, so there have been no due process violations.

Accordingly, he granted the associations’ summary judgment motions and denied the city’s motion.

Commentary

Despite the length of this decision (21 pages) there were several times when the court’s determinations were simply conclusory statements, such as: state concerns are paramount; the associations’ arguments are more persuasive. Further exposition of why the court came to those conclusions would have been helpful.

On the other hand, the decision was thorough with excellent use of case law in its analyses. The factors the court considered were carefully articulated.

On balance, this is a well considered decision of a circuit court. It has the potential for statewide influence in that it would be persuasive authority for any other court where employees challenge a municipality on a residency rule.