Black v. City of Milwaukee

369 Wis.2d 272

882 N.W.2d 333

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 of Wisconsin.

Argued Feb. 24, 2016.

Decided June 23, 2016.

For the plaintiffs-respondents-petitioners, intervenor-plaintiff-respondent-petitioner, and plaintiffs-respondents-cross-appellants-petitioners, there were briefs by Jonathan Cermele, Brendan P. Matthews, and Cermele & Matthews, S.C., Milwaukee, and John F. Fuchs, Rebecca Boyle, and Fuchs & Boyle S.C., Milwaukee. Oral argument by Jonathan Cermele and John F. Fuchs.

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 Luke N. Berg, deputy solicitor general with whom on the brief was Brad D. Schimel, attorney general and Misha Tseytlin, solicitor general.

There was an amicus curiae brief by Claire Silverman and League of Wisconsin Municipalities.

MICHAEL J. GABLEMAN, J.

¶ 1 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 Article XI, § 3(1) of the Wisconsin Constitution, better known as the home rule amendment. “Adopted in 1924, the home rule amendment was intended to provide cities and villages with greater autonomy over local affairs,” while still retaining the Legislature's power to legislate. Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶ 89, 358 Wis.2d 1, 851 N.W.2d 337 (footnotes omitted). Accordingly, the home rule amendment gives cities and villages the ability “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.”² Wis. Const. art. XI, § 3 (1). In other words, a city or village 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, 851 N.W.2d 337.

¶ 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 Wis. Stat. § 66.0502 (2013–14).³ Simply stated, Wis. Stat. § 66.0502 prohibits cities, villages, towns, counties, and school districts⁴ from requiring their employees to reside within their jurisdictional limits. It is obvious the charter and the statute conflict: one imposes a residency requirement and one bans residency requirements. Despite enactment of Wis. Stat. § 66.0502, the City has continued to enforce its residency requirement.⁵

¶ 4 The City claims that it can continue to enforce its residency requirement pursuant to its home rule authority under Article XI, § 3(1) of the Wisconsin Constitution. The City contends that its residency requirement (contained in section 5–02 of its charter) involves a matter of “local affairs” because (1) the City has an interest in maintaining a tax base from which to draw revenue; (2) the City has an interest in its employees sharing a common community investment as Milwaukee residents; and (3) the City has an interest in efficiently delivering city services. Moreover, the City argues that Wis. Stat. § 66.0502 cannot trump section 5–02 because it does not with uniformity affect every city or every village. It believes that “uniformity” must be understood as “actually affecting all municipalities in equal measure uniformly.” According to the City, Wis. Stat. § 66.0502 fails to satisfy the home rule amendment's uniformity requirement because it does not impact all cities or villages in equal measure.

¶ 5 In contrast, the Police Association claims that the City can no longer enforce its residency requirement because Wis. Stat. § 66.0502 trumps section 5–02 of the City's charter. The Police Association contends, in relevant part, that residency requirements constitute a matter primarily of statewide concern because (1) when the Legislature enacted Wis. Stat. § 66.0502, it found that “public employee residency requirements are a matter of statewide concern;” and (2) the Legislature may legislate on matters that concern public health, safety, and welfare, and here, it is reasonable to presume that the Legislature determined that residency requirements negatively impact the welfare of public employees. Additionally, the Police Association argues that Wis. Stat. § 66.0502 trumps section 5–02 of the City's charter because Wis. Stat. § 66.0502 with uniformity affects every city or village. Unlike the City, it believes that “uniformity” must be understood as requiring “facial uniformity.” According to the Police Association, Wis. Stat. § 66.0502 is facially uniform because, by its terms, it applies to all cities, villages, towns, counties, and school districts. Finally, the Police Association seeks relief and damages under 42 U.S.C. § 1983. It claims that the City unconstitutionally deprived it of its “liberty interest in being free from ‘residency’ being required as a condition of municipal employment” when the City continued enforcement of its residency requirement after the Legislature enacted Wis. Stat. § 66.0502.

¶ 6 This case presents two issues for our review. The first is whether Wis. Stat. § 66.0502 precludes the City from enforcing its residency requirement. The second is whether the Police Association is entitled to relief and damages under 42 U.S.C. § 1983.

¶ 7 As to the first issue, we hold that Wis. Stat. § 66.0502 precludes the City from enforcing its residency requirement. The Legislature has the power to legislate on matters of local affairs when its enactment uniformly affects every city or every village, notwithstanding the home rule amendment. For purposes of the home rule amendment, an enactment is uniform when it is facially uniform. Wisconsin Stat. § 66.0502 is facially uniform because it applies to “any city, village, town, county, or school district.” Wis. Stat. § 66.0502(2) (emphasis added). Because Wis. Stat. § 66.0502 uniformly affects every city or village, it trumps section 5–02 of the City's charter. As a result, Milwaukee may no longer enforce its residency requirement.

¶ 8 As to the second issue, we hold that the Police Association is not entitled to relief or damages under 42 U.S.C. § 1983. Its section 1983 claim fails because the Police Association has not met the requirements necessary to prevail on a section 1983 claim. Specifically, the Police Association has not shown a deprivation of rights, privileges, or immunities protected by the Constitution or the laws of the United States.⁶

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 discharge for any employee caught living outside its city limits. Section 5–02 of the City charter contains Milwaukee's residency rule:

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 Wis. Stat. § 66.0502, which prohibits any city, village, county, or school district from requiring an employee to live within a jurisdictional limit. Specifically, it states,

(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

Wis. Stat. § 66.0502(1) –(3)(b).

¶ 11 On the day Act 20 took effect, the City's Common Council passed a resolution titled, “Substitute resolution directing all City officials to continue enforcement of s. 5–02 of the Milwaukee City charter relating to residency.” It states, in pertinent part,

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

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