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Anderer v. City of Milwaukee

United States District Court, E.D. Wisconsin

November 23, 2016

JOSEPH A. ANDERER, MILWAUKEE POLICE ASSOCIATION, and MICHAEL V. CRIVELLO, Plaintiffs,
v.
CITY OF MILWAUKEE, Defendant.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On September 30, 2016, defendant City of Milwaukee (the “defendant” or “City”) filed a motion for judgment on the pleadings, seeking dismissal of the entirety of the Complaint. (Docket #11). On October 20, 2016, plaintiffs Joseph A. Anderer, Milwaukee Police Association, and Michael V. Crivello (collectively the “plaintiffs” or “Officers”) responded to the motion. (Docket #16). On November 2, 2016, the City submitted a reply in support of its motion. (Docket #17). The motion is now fully briefed and, for the reasons explained below, it will be granted.

         2. STANDARD OF REVIEW

         Federal Rule of Civil Procedure (“FRCP”) 12(c) permits a party to seek judgment once each side has filed its pleadings. Fed.R.Civ.P. 12(c). The Court reviews such motions

by employing the same standard that applies when reviewing a motion to dismiss for failure to state a claim under [FRCP] 12(b)(6)…. Thus, we view the facts in the complaint in the light most favorable to the nonmoving party and will grant the motion only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.

Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citations and quotations omitted). The Court must “draw all reasonable inferences and facts in favor of the nonmovant, but need not accept as true any legal assertions.” Wagner v. Teva Pharmaceuticals USA, Inc., No. 15-2294, 2016 WL 6081381 *1 (7th Cir. Oct. 18, 2016). The City concedes as much; it admits all of the material factual allegations stated in the complaint, disputing only the legal conclusions drawn therefrom. See (Docket #1-1 at 4-11; Docket #2; Docket #12 at 2).

         The Court may take judicial notice of documents in the public record without converting a FRCP 12(c) motion to one for summary judgment under FRCP 56 (which would necessitate discovery). Scherr v. Marriott Intern., Inc., 703 F.3d 1069, 1073 (7th Cir. 2013). The City requests that the Court take judicial notice of the documents appended to its motion, which include a Wisconsin state statute and various official documents of the City of Milwaukee and its subdivisions. See (Docket #12-1). The Officers do not oppose this request. The documents the City presents are the proper subjects of judicial notice and the Court will, therefore, take notice of them. See Fed. R. Evid. 201(b) and (c)(2); U.S. v. Hemphill, 447 F. App'x 733, 736 (7th Cir. 2011).

         3. RELEVANT FACTS

         The following facts are gleaned from viewing the factual allegations of the complaint in a light most favorable to the plaintiffs. The plaintiffs are two individual police officers and the union that represents Milwaukee Police Department (“MPD”) officers, the Milwaukee Police Association (“MPA”). (Docket #1-1 at ¶¶ 3-5). Prior to 2013, a City charter ordinance required all City employees to reside within the municipality.[1] Id. at ¶ 8. In 2013, Wisconsin statute Section 66.0502 was enacted, eliminating all such “residency” requirements in cities throughout the state.[2] Id. at ¶ 9. The statute permitted an exception for law enforcement personnel such that a municipality could require those employees to reside within fifteen miles of the city limits (the “Zone”). Id. at ¶ 10. The statute became effective on July 2, 2013. Id. at ¶ 11.

         That same day, instead of explicitly adopting a Zone requirement for its law enforcement employees[3], the City promulgated a resolution “directing all City officials to continue enforcement of [the residency ordinance], ” and this resolution was signed into law by the mayor.[4] Id. at ¶¶ 12-14. The MPA sued the City to challenge continued enforcement of the residency requirement. Id. at ¶ 15. On June 23, 2016, the Wisconsin Supreme Court ruled in the MPA's favor. Id. at ¶ 16; see Black v. City of Milwaukee, 882 N.W.2d 333 (Wis. 2016). The City made no attempt to impose a Zone requirement throughout the pendency of that case. Id. at ¶ 17.

         During the time between the passage of Section 66.0502 and the Black ruling, some law enforcement officers moved outside the City and the area which would be included in the City's Zone. Id. at ¶¶ 18, 21. Further, the City hired a number of new officers who lived outside the Zone. Id. at ¶¶ 19-20. On July 26, 2016, the City finally imposed a Zone requirement on all law enforcement personnel, including those who had moved out of the Zone in the interim.[5] Id. at ¶¶ 22-23. As with the previous residency ordinance, living outside the Zone meant the employee would be terminated. Id. at ¶ 24. The new ordinance softened the rule in three ways: 1) an employee could ask for up to six months' time to move into the Zone, 2) an employee could be granted a “temporary exception” by the relevant City authorities based on financial hardship, and 3) an employee could be granted a complete exception if they were married to a person who was also subject to a residency requirement for a different municipality.[6] See (Docket #12-1 at 9-10). The City's Zone requirement took effect on October 11, 2016. Id. at 10.

         4. ANALYSIS

         The Officers allege two causes of action. First, they assert a “Violation of Substantive Due Process (Property Right)[.]” (Docket #1-1 at 9). The Officers claim that Section 66.0502 and Black granted them a right to be free of the City's residency requirement. Id. at ¶¶ 26-27. They do not contest the City's authority to impose a Zone requirement, but allege that it cannot do so retroactively. Id. at ¶¶ 28-29. The Officers argue that this would interfere with rights of those law enforcement employees who left the Zone before the Zone requirement was created. Id. at ¶ 30. They claim that this denies those employees substantive due process in violation of the Fifth and Fourteenth Amendments. Id. The second cause of action is also for substantive due process, but brought pursuant to the Wisconsin Constitution. Id. at 10. The Officers assert the same violation as detailed in the first cause of action. Id. at ¶¶ 31-32.

         The City presents two arguments in favor of dismissal. First, it asserts that the Zone requirement does not apply retroactively, and thus does not affect the Officers' claimed substantive rights.[7] Second, the City argues that even if the Zone requirement is viewed as having retroactive effect, it does not violate a recognizable substantive due process right. While these two considerations are closely linked, as discussed below, the first is dispositive. The Court addresses each cause of action separately.

         4.1 Federal Constitutional Claim

         The City contends that the Zone requirement does not operate retroactively, but instead only prospectively. (Docket #12 at 7-10). It relies almost entirely on the Seventh Circuit's decision in Andre v. Board of Trustees of the Village of Maywood, 561 F.2d 48 (7th Cir. 1977). In Andre, the court upheld an ordinance similar to the one at issue in the instant case. Id. at 51. There, the Village of Maywood (“Maywood”) enacted an ordinance requiring municipal employees to establish residence within the municipality within a few years. Id. at 49. The plaintiffs, law enforcement and emergency services personnel, challenged the ordinance on the grounds that, inter alia, it operated retroactively to impair their pre-existing, vested right to live outside Maywood. Id. The plaintiffs found support for this alleged right in a previously enacted hiring preference ordinance, which permitted Maywood employees to live outside the city boundaries but gave preference in hiring to those within them. Id. at 50. The court explained that

[i]t is plaintiffs' principal argument that the 1971 adoption of [the hiring preference ordinance], together with the past actions of Maywood in allowing its employees to reside elsewhere, created in plaintiffs a vested contractual right to live outside Maywood. The adoption of the 1975 residency requirement ordinance acted to repeal [the hiring preference ordinance's] “express approval and authorization” to reside outside Maywood and, their argument concludes, resulted in an unconstitutional exercise of the municipality's police power.

Id.

         The court disagreed, finding that the hiring preference ordinance gave no indication of “the creation of an absolute unconditional right in plaintiffs to live outside Maywood.” Id. at 51. Further, “[e]ven if [it] did create some interest in the plaintiffs, that interest would have been contingent upon the anticipated continuance of the ordinance. Such an interest does not amount to a vested right.” Id. The court also determined that the residency ordinance was not retroactive. Id. It simply required current Maywood employees to change their residence by a certain deadline. Id. No employee could be charged with violating the ordinance because they lived outside Maywood in the past. Id. “As such, ” the ...


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