Milwaukee Residency Rule Held Illegal

For many years, Milwaukee, Wisconsin 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.

In 2013, the Legislature enacted 2013 Wisconsin Act 20, which prohibits any city, village, county, or school district from requiring an employee to live within a jurisdictional limit. Act 20 found that public employee residency requirements are a matter of statewide concern, and specifically states that “no local governmental unit may require, as a condition of employment, that any employee or prospective employee reside within any jurisdictional unit.”

The City did not take kindly to Act 20, and the City Council passed a resolution that it would continue to enforce its residency rules. That brought lawsuits from both the Milwaukee Police Association and the Milwaukee Firefighters Association. After a hearing before a trial court, the issue was appealed to the Wisconsin Supreme Court.

The Court upheld the constitutionality of Act 20. The City’s arguments focused on the “home rule” section of the Wisconsin Constitution, a section similar to those in place in many states. The home rule provision 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.”

As the Court put it: “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 Act 20, has determined that public employees should have the right to choose where they wish to live. On the other hand, the City has asserted an interest in maintaining its residency requirement in order to protect its tax base, its interest in its employees sharing a common community investment as city residents, and its interest in its efficient delivery of services.

“Act 20 constitutes a ‘mixed bag’ because it concerns both statewide and local interests. At this point, we would ordinarily proceed to apply the test of paramountcy to determine whether the legislative enactment is primarily or paramountly a matter of local affairs or a matter of statewide concern. However, in this case, we do not apply the test of paramountcy to determine which interest (state or local) is paramount. Instead, we give the City the benefit of the doubt: we assume, without deciding, that Act 20 is a matter of local affairs. Accordingly, we move on to consider the second step in the home rule analysis – whether Wis. Stat. § 66.0502 uniformly affects every city or village.

“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. We conclude that Act 20 uniformly affects every city or village. We so conclude because the plain language of Act 20 demonstrates its uniform effect: Wis. Stat. § 66.0502 says that ‘no local governmental unit’ may have a residency requirement, and it goes on to define ‘local governmental unit’ to mean ‘any city, village, town, county, or school district” in the State. Consequently, Act 20 uniformly bans residency requirements, and in so doing, it satisfies the home rule amendment’s uniformity requirement.”

The Court found that the principles of statewide interest and uniformity prevailed over the home rule section: “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. Act 20 is facially uniform because it applies to ‘any city, village, town, county, or school district.’ Because Act 20 uniformly affects every city or village, it trumps the residency clause in the City’s charter. As a result, Milwaukee may no longer enforce its residency requirement.”

Black v. City of Milwaukee, 2016 WL 3448194 (Wis. 2016).