James A. Black, Glen J. Podlesnik and Steven J. Van Erden, Plaintiffs-Respondents-Petitioners,
Milwaukee Police Association and Michael V. Crivello, Plaintiffs-Respondents-Cross-Appellants-Petitioners, Milwaukee Professional Fire Fighters Association Local 215, Intervenor-Plaintiff-Respondent-Petitioner,
City of Milwaukee, Defendant-Appellant-Cross-Respondent.
ARGUMENT: February 24, 2016
OF A DECISION OF THE COURT OF APPEALS (Reported at 364 Wis.2d
626, 869 N.W.2d 522) (Ct. App. 2015 – Published) PDC
No: 2015 WI App. 60
of a decision of the Court of Appeals. Circuit Court L.C. No.
2013CV5977, Milwaukee County Paul R. Van Grunsven Judge.
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.
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.
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.
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.
was an amicus curiae brief by Claire Silverman and League of
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'sgrant 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.
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." 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.
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). Simply stated, Wis.Stat. § 66.0502
prohibits cities, villages, towns, counties, and school
districts 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.
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.
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.
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.
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
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
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
For many years, Milwaukee 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.
On June 20, 2013, the Legislature enacted 2013 Wisconsin Act
20 ("Act 20"). 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
(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.
Wis. Stat. § 66.0502(1)-(3)(b).
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 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
 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;
 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 . . . .
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."
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
On July 10, 2013, the Police Association filed suit
against the City in Milwaukee County Circuit Court. The
Police Association sought a declaratory judgment, pursuant to
Wis.Stat. § 806.04,  in order to determine the
rights and obligations of the parties under Wis.Stat. §
66.0502, as well as a declaration that the City had violated
Wis.Stat. § 66.0502. Additionally, the Police
Association asked for relief and damages under 42 U.S.C.
§ 1983. It claimed that it was entitled to relief under
section 1983 because the City violated its liberty interest
to be free from residency requirements as a condition of
employment when its Common Council passed, and the Mayor
signed, the resolution.
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." All parties moved for summary judgment.
On January 27, 2014, the circuit court held a hearing on the
parties' motions for summary judgment. That same day, the
court issued a decision and order. Regarding the home rule
amendment, the circuit court succinctly stated its findings
in its concluding paragraph:
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 of
Wis.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 under art.
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 of Wis.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 of
Wis.Stat. § 66.0502.
the Police Association's section 1983 claim for damages,
the circuit court concluded that "Wis. Stat. §
66.0502 creates a liberty interest in freedom from residency
requirements as a condition of municipal employment, except
as provided by the statute." But the court did not award
damages because "the City's actions thus far have
not deprived any part of the liberty interest created by
Wis.Stat. § 66.0502."
The City appealed, and the Police Association
cross-appealed. The court of appeals affirmed in part and
reversed in part the circuit court's grant of summary
judgment. Black v. City of Milwaukee, 2015 WI App.
60, ¶3, 364 Wis.2d 626, 869 N.W.2d 522. With respect to
the section 1983 claim, the court of appeals affirmed the
circuit court's decision not to award relief or damages
under section 1983. Id., ¶3. It did so on the
grounds that Wis.Stat. § 66.0502 "did not create a
protectable liberty interest." Id., ¶35.
With respect to the home rule amendment, the court of appeals
concluded, "because Wis.Stat. § 66.0502 does not
involve a matter of statewide concern and does not affect all
local government units uniformly, it does not trump the
Milwaukee ordinance." Id., ¶3 (emphasis
In reaching its conclusion on the home rule amendment, the
court of appeals expressed deep concern over the
disproportionate "impact" it believed Wis. Stat
§ 660502 could have on the City See id, ¶¶5-8,
20-29, 33; see also id, ¶¶36-37 (Kessler, J,
concurring). As a consequence of that concern, it determined
that Wis.Stat. § 66.0502 primarily addressed a matter of
local affairs and did not impact every city or village
equally. To support its conclusions, the court of appeals
relied on the Legislative Fiscal Bureau's Paper (#554),
titled "Local Government and Employee Residency
Requirements." According to the court of appeals, Paper
#554 hypothesized that elimination of such requirements might
adversely impact Milwaukee's "levels of employment,
incomes, and home values in certain neighborhoods."
Id. ¶6 (majority opinion).
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 Detroit, " and "The
report surmised that Milwaukee could face the same fate as
[Detroit], despite arguments to the contrary . . . ."
Id., ¶7. The court of appeals felt so strongly
about the impact Wis.Stat. § 66.0502 might have on the
City, it went so far as to state, "Regardless of what
the statute's language says, the facts in the record make
clear that only one city--Milwaukee--will be deeply and
broadly affected." Id., ¶33 (emphasis
added); see also id., ¶21 ("The facts in
the record, exemplified by the Legislative Fiscal
Bureau's paper, make clear that the goal of Wis.Stat.
§ 66.0502 was to target the City of Milwaukee."
(emphasis added)). Consequently, the court of appeals ruled
that section 5-02 of the City's ordinance was "still
good law." Id., ¶35.
The Police Association petitioned this court for review. We
granted the petition on November 4, 2015.
STANDARD OF REVIEW
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.
In this case, we must also interpret a provision of the
Wisconsin Constitution as well as a state statute. "The
interpretation of a constitutional provision is a question of
law that we review de novo." Appling v. Walker,
2014 WI 96, ¶17, 358 Wis.2d 132, 853 N.W.2d 888.
"The interpretation and application of a statute present
questions of law that this court reviews de novo while
benefitting from the analyses of the court of appeals and
circuit court." In re Commitment of Alger, 2015
WI 3, ¶21, 360 Wis.2d 193, 858 N.W.2d 346.
We first discuss whether Wis.Stat. § 66.0502 precludes
the City from enforcing its residency requirement. We then
consider whether the Police Association is entitled to relief
and damages under 42 U.S.C. § 1983.
WHETHER WIS. STAT. § 66.0502 PRECLUDES THE CITY FROM
ENFORCING ITS RESIDENCY REQUIREMENT
"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 (1923) ("A municipality is merely a department of
the state, and the state may withhold, grant, or withdraw
power and privileges as it sees fit. However great or small,
its sphere of action, it remains the creature of the state
exercising and holding powers and privileges subject to the
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." Wis. Const.
art. XI, § 3(1).
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.
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) ("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 449 ("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 affects
uniformly every city . . . ."); Van Gilder, 222
Wis. at 84 ("When the legislature deals with local
affairs and government of a city, if its act is not to be
subordinate to a charter ordinance, the act must be one which
affects with uniformity every city. . . . [In contrast, ]
[w]hen 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 home-rule amendment.
The home-rule amendment did not withdraw from the legislature
its power to deal with matters primarily of state-wide
concern which it possessed before the adoption of the
amendment."); Thompson v. Kenosha Cty., 64
Wis.2d 673, 686, 221 N.W. 845 (1974) ("[A]s this court
held in Van Gilder v. Madison and affirmed in
West Allis v. Milwaukee County, this uniformity
limitation applies only if the subject of the statute
concerns primarily local affairs. If the subject of the
legislation is of statewide concern, the uniformity
restriction is inapplicable." (footnotes omitted));
State ex rel. Michalek v. LeGrand, 77 Wis.2d 520,
530 n.16, 253 N.W.2d 505 (1977) ("Michalek")
(noting that the home rule amendment limits the legislature
only in the "field of local affairs of cities
and villages;" thus, the home rule amendment does not
limit the legislature in the field of statewide affairs
(emphasis added)). Adoption of the City's argument would
require us to overturn precedent from this court dating back
to 1925. We see no reason to toss out nearly a century's
worth of precedent, and so we proceed under the framework set
forth in Harbach, Baxter, Van Gilder, Thompson,
Michalek, and Madison Teachers.
Whether Residency Requirements Are Primarily Of Statewide
Concern Or. Are Primarily Of Local Concern
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.
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 home-rule
amendment."). In contrast, if a legislative enactment
concerns a policy matter of "purely local affairs,
" then "home rule municipalities may regulate those
local matters and, under the home rule amendment, state
legislation that would preempt or make that municipal
regulation unlawful, unless uniformly applied statewide, is
prohibited." Madison Teachers, 358 Wis.2d 1,
¶98 (citing Michalek, 77 Wis.2d at 529).
Finally, if a "legislative enactment touches on an issue
that concerns both statewide and local government interests
(a 'mixed bag'), " then a court must determine
whether the matter is "primarily" or
"paramountly" a matter of statewide or local
concern. Id., ¶100 (citing Michalek, 77 Wis.2d
Here, the Legislature specially included a public policy
statement in Wis.Stat. § 66.0502: "The legislature
finds that public employee residency requirements are a
matter of statewide concern." Wis.Stat. §
66.0502(1). This court has previously held that legislative
determinations regarding whether a policy matter constitutes
a "statewide concern" or a matter of "local
affairs, " are "entitled to great weight."
Madison Teachers, 358 Wis.2d 1, ¶125 (citing Van Gilder,
222 Wis. at 73-74 (noting that "[e]ven though the
determination made [by the Legislature] should be held not to
be absolutely controlling, nevertheless, it is entitled to
great weight")). Deference is proper because
"matters of public policy are primarily for the
legislature." Van Gilder, 222 Wis. at
73-74;see also Flynn v. Dep't of
Admin., 216 Wis.2d 521, ¶24, 576 N.W.2d 245 (1988)
("This court has long held that it is the province of
the legislature, not the court, to determine public
policy" because as the "voice of the people, "
"[i]t is the best judge of what is necessary to meet the
needs of the public . . . ."). While we give deference
to a Legislature's determination, the ultimate decision
"whether a legislative enactment is primarily a matter
of local or statewide concern rests with this court and not
the legislature." Madison Teachers, 359 Wis.2d 1,
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
Wis.Stat. § 66.0502, 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.
Given the competing interests outlined above, we conclude
that Wis.Stat. § 66.0502 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 Wis.Stat. §
66.0502 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.
Whether Wis.Stat. § 66.0502 With Uniformity Affects
Every City Or. Village
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: Article XI, § 3(1) of the Wisconsin
Constitution. With this precedent as our guide, we turn to
the question of whether Wis.Stat. § 66.0502 affects with
uniformity every city or village.
In Thompson, the Legislature passed Wis.Stat. § 70.99,
which allowed any Wisconsin county to establish a county
assessor system. 64 Wis.2d at 676. The plaintiffs argued that
Wis.Stat. § 70.99 violated the home rule amendment.
Under the statute, if a county chose to establish a county
assessor system, then the office of assessor in all cities,
villages, and towns within the county was eliminated.
Id. Kenosha County chose to adopt a county assessor
system; thus, the office of assessor was eliminated in all
cities, villages, and towns within Kenosha County. Relying on
the home rule amendment, the plaintiffs argued that Wis.Stat.
§ 70.99 did not uniformly affect all cities and villages
because the cities and villages in Kenosha County had no
office of assessor, while cities and villages located in
counties that chose to forego adoption of a county assessor
system had an office of assessor. Id. at 683. This
court dismissed their argument, commenting,
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.
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
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).
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.
The effect of the court of appeals' interpretation of
uniformity is to ignore the holdings in Van Gilder and
Thompson. That is, while Van Gilder and Thompson instruct
that facial uniformity is sufficient, the court of appeals
would hold that facial uniformity would "all but
obliterate the home rule amendment." Black, 364 Wis.2d
626, ¶32. The court of appeals misperceives the point of
the home rule amendment. As stated previously, "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, 222 Wis. at 67. The home rule amendment
"confer[red] upon cities and villages a measure of
self-government not theretofore possessed;" however, the
amendment did so via "a grant of power to cities and
villages, " not via an "express limitation upon the
power of the Legislature." Baxter, 195 Wis. at 445.
("The [amendment] is a grant of power to cities and
villages. . . . 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
Thus, under the home rule amendment, a city or village
"operates freed from legislative restriction" only
in "a rather narrow field." Van Gilder,
222 Wis. at 80-81. We have explained,
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
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.
In this case, the Legislature banned residency requirements
throughout Wisconsin by enacting Wis.Stat. § 66.0502. We
conclude that Wis.Stat. § 66.0502 (consistent with the
home rule amendment) uniformly affects every city or village.
We so conclude because the plain language of Wis.Stat. §
66.0502 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.
Wis.Stat. § 66.0502(2)-(3) (emphasis
added).Consequently, Wis.Stat. § 66.0502
uniformly bans residency requirements, and in so doing, it
satisfies the home rule amendment's uniformity
WHETHER THE POLICE ASSOCIATION IS ENTITLED TO RELIEF AND
DAMAGES UNDER SECTION 1983
Finally, we address the Police Association's argument
that it is entitled to relief and damages under 42 U.S.C.
§ 1983. "Section 1983 provides a remedy against
'any person' who, under color of state law, deprives
another of rights protected by the
Constitution." Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120-21 (1992). "Section 1983,
by itself, does not create any substantive constitutional
rights;" rather, it "provides a remedy for a
deprivation of such rights." Penterman v. Wis. Elec.
Power Co., 211 Wis.2d 458, ¶22, 565 N.W.2d 521
(1997) (citing Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 617-18 (1979)). Accordingly, in
order to state a claim under section 1983, "a party must
allege: (1) that a person acting under the color of state law
committed the alleged conduct; and (2) that this conduct
deprived the party of rights, privileges, or immunities
protected by the Constitution or laws of the United
States." Penterman, 211 Wis.2d 458, ¶22.
The Police Association bases its section 1983 claim on an
alleged denial of due process. The Due Process Clause of the
Fourteenth Amendment "prohibits a state from depriving
'any person of life, liberty, or property without due
process of law.'" Id., ¶39. Both this
court and the Supreme Court of the United States recognize
that three types of section 1983 claims may be brought
against a state under the Due Process Clause:
(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
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
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.
Whether The City Violated The Police Association's
Substantive Due Process Rights
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,
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
Whether The City's Actions Shock The Conscience
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, handcuffed him, struggled
to open his mouth, forced an emetic solution into his
stomach, and made him vomit, so they could obtain evidence.
342 U.S. at 166. The Supreme Court of the United States held
that these actions were "too close to the rack and the
screw to permit . . . ." Id. at 172.
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 (Wis. Stat.
§ 66.0502). Because the City believed its charter
prevailed over the state statute, the resolution stated that
the City would continue to enforce its residency
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, Wis.Stat. § 66.0502 or section 5-02 of the
City's charter, would prevail. The Common Council and the
Mayor, by passing the resolution, merely provided the
City's opinion that, pursuant to the home rule amendment,
section 5-02 of the City's charter trumped Wis.Stat.
§ 66.0502. The City has not pointed to any case where
factually similar conduct was held to shock the conscience.
Therefore, we are not willing to conclude that a genuine